Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 56-2009- 00338672-CU-WM-VTA, Glen M. Reiser, Judge.
Brandt-Hawley Law Group, Susan Brandt-Hawley for Plaintiff and Appellant.
Alan Holmberg, City of Oxnard, Office of the City Attorney; Gatzke Dillon & Balance LLP, Mark J. Dillon, Rachel C. Cook for Defendants and Respondents and Real Parties in Interest and Respondents.
PERREN, J.
San Buenaventura Conservancy (Conservancy) challenged the City of Oxnard's approval of an environmental impact report (EIR) for a 64-acre, mixed-use commercial and residential development in North Oxnard. The dispute concerns the environmental impact of the proposed "ranch style" historical buildings and associated structures, known locally as "The Wagon Wheel." The Conservancy contends that the EIR violates the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq., because it does not contain a reasonable range of alternatives to mitigate the project's impact on the Wagon Wheel historical structures and that the report relied on inaccurate information in concluding that, among other things, the rehabilitation of the buildings was economically infeasible. Like the trial court below, we conclude the EIR adequately addressed the reasonable range of alternatives and that the information in the report was supported by substantial evidence.
All statutory references are to the Public Resources Code unless stated otherwise.
The Conservancy appeals from a judgment denying its petition for writ of mandate. We affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The Wagon Wheel property contains 76 motel units on the site of a former slaughter house at the interchange of State Highways 1 and 101. The buildings were constructed beginning in 1947 from surplus World War II military barracks from Port Hueneme. The motel office/restaurant contains three decorative brick chimneys constructed from bricks possibly salvaged from the demolition of the Oxnard brothers' sugar beet factory. The complex was built by Martin V. Smith, a prominent local developer and philanthropist, now deceased.
The motel and restaurant were built in a western "ranch style, " with very low-pitched gable roofs, broad overhanging eaves and exposed rafters. The architecture is accented by western motif items, including wagon wheels, a water well, branding irons and horseshoes. The western motif is further enhanced by a large neon pole sign, once animated, depicting a stagecoach, horse team and driver. An adjacent bowling alley was constructed in 1953 with a barrel vault roof and raised parapet, also identified by a large neon pole sign. Only the bowling alley remains in operation. Also adjacent is the El Ranchito Restaurant, remodeled in 1952 with a raised parapet capped in Spanish tile. The restaurant closed in 2003.
This description of the property is taken from the trial court's memorandum of opinion.
In 2006, the City began considering a development proposal submitted by respondent and real party in interest Daly Owens Group (Daly) for a mixed-use commercial and residential development situated on a 64-acre parcel in North Oxnard which includes the approximately five-acre parcel where the motel, restaurant, and bowling alley are located (the Wagon Wheel Property.) The project proposed by Daly includes 1, 500 high-density residential units, including two high-rise 25-story residential towers, 50, 400 square feet of commercial uses, a transit center and parking, and 7.3 acres of parks and open space. Fifteen percent of the residential units would have affordable housing restrictions.
The Wagon Wheel property also contains a mobile home and recreational vehicle park which will close if the project goes forward. Relocation of residents in the park is not an issue in this lawsuit.
California State Historic Preservation Officer Milford Wayne Donaldson, in a letter commenting on the draft environmental impact report (DEIR) for the project, opined: "The Wagon Wheel Motel is one of the best remaining examples of this roadside building type that represents California's early automobile vacation culture. [It] maintains its integrity from its period of significance (1947 through 1965), and is indicative of mid-century American and western themes, one-of-a-kind architecture with proximity to the highway.... The Wagon Wheel Motel, the Wagon Wheel Restaurant... the neon horse and buckboard sign, bowling alley and the El Ranchito Restaurant should be adaptively re-used." He concluded that the buildings were eligible for the California Register of State Historic Resources and recommended that the project be modified to retain the buildings or that one of the alternatives in the DEIR be adopted.
In 2007, the Ventura County Cultural Heritage Board, acting as the Oxnard Cultural Heritage Board, recommended landmark designation for these buildings.
In May 2008, the City completed and released for public comment its 900-page DEIR for the proposed project. The "project objective" stated in the DEIR is "to redevelop the project site with a financially feasible, mixed-use, transit-oriented project that meets the residential and commercial needs of the City of Oxnard and the redevelopment objectives of the City's Historic Enhancement and Revitalization of Oxnard (HERO) District." The DEIR included an evaluation of the potential eligibility of the Wagon Wheel buildings as historical resources. It also included reports from three consultants. The first consultant found neither the Wagon Wheel Motel nor restaurant was "eligible due to a lack of design integrity resulting from the alterations which occurred to the building after 1955, and a loss of setting integrity resulting from the construction of the freeway." The two other consultants determined that the motel and restaurant should be treated as historically significant because of their association with Smith and as relatively scarce local examples of "roadside architecture." These two reports concluded that the restaurant and bowling alley may be locally eligible as a potential historic landmark district.
Based on these reports, the DEIR treated the Wagon Wheel buildings as "potentially eligible" for listing as historic resources. The DEIR concluded that demolition of the Wagon Wheel buildings would result in significant unavoidable impacts and recommended mitigation measures to reduce these impacts, including: (1) Preparation of a documentation report consisting of archival quality photographs; measured drawings of the significant buildings and structures; and a historic resources report; (2) incorporation of significant features of the historic properties into the design of the new project, including freestanding and attached signs; (3) creation of an onsite interpretive display describing the property's significant historic themes; (4) production of a video-based oral history project regarding the Wagon Wheel site and Martin Smith; and (5) production of two television programs of at least 30 minutes in length to be broadcast on local public access.
The DEIR stated that the mitigation measures would reduce, but would not eliminate, the significant unavoidable impacts on historic resources which would result from demolishing the Wagon Wheel buildings.
The DEIR evaluated five alternatives to the proposed project, all of which included onsite preservation of the Wagon Wheel buildings identified as historic in the DEIR. Two of the alternatives are not at issue here-the "no project" alternative and the "alternative site" alternative.
The first of the remaining alternatives, designated "Alternative 2: Reduced/No Towers Project with School Site, " would consist of 1, 000 residential units, configured to reduce several of the environmental impacts identified in the EIR. Building heights would be a maximum of three stories. A 15-acre school site would be included in the alternative. The historic structures would be renovated and would remain, whether in their original uses or adaptive uses.
"Alternative 3: Buildout under Existing General Plan/Zoning Designations, " would consist of 479, 000 square feet of two-story retail development and 810 three-story townhouses. The historic structures would be renovated and would remain in either their original uses or adaptive reuse.
"Alternative 4: Increased Commercial/Decreased Residential and Reconfigured Specific Plan, " was based on a 1990's development proposal for the site. It would consist of 130, 000 square feet of general commercial development, 1.45 million square feet of office space, a 16, 000 square foot restaurant and 250 residential units in buildings of up to eight stories. Structural components would be set back greater distances from Highway 101 and the railroad tracks to reduce noise and air quality impacts. The historic structures would be renovated and would remain, whether in their original uses or adaptive reuse.
The public comment period for the DEIR began on May 30, 2008, and ended on July 18, 2008. During that time, the City received more than two dozen letters from members of the public urging that the Wagon Wheel buildings be preserved by adoption of one of the alternatives contained in the DEIR. The letter from the Conservancy, dated July 10, 2008, urged the City to adopt one of the proposed alternatives in the DEIR that would preserve the Wagon Wheel Motel, Wagon Wheel Restaurant, El Ranchito Restaurant, and the Wagon Wheel Bowling Alley. A letter from the Ventura County Cultural Heritage Board urged that the Wagon Wheel Restaurant and Motel office building be preserved and rehabilitated through adaptive reuse. As previously noted, the State Historic Preservation Officer opined that the buildings were eligible for designation as state historic landmarks.
In July and August 2008, the Planning Commission held public hearings, and additional public comments were received. At the public hearing before the Planning Commission on July 17, 2008, the Conservancy's president gave a video presentation of the history of the site. He urged preservation and adaptive reuse of the Wagon Wheel buildings. At that time, he presented a letter to the Commission proposing reuse ideas for the buildings. The Conservancy submitted another letter dated August 21, 2008, requesting that the project proceed only "after preservation of some [of] the historic Wagon Wheel buildings is assured."
In August 2008, the City released the final EIR (FEIR). The FEIR was substantively similar to the DEIR, with the addition of the City's written responses to comments and a mitigation monitoring and reporting plan.
The written response to the State Historic Preservation Officer's comments were grouped together for response in the FEIR with comments from other sources relating to historic resources, even though these comments, in the words of the trial court "directly contradicts virtually every statement and conclusion in the DEIR/FEIR on this point." The trial court characterized this method of responding to comments as "burying" the State Park's comments among three dozen private comments. Unlike the trial court, we conclude that the City's response to the State Preservation Officer's comments did not violate CEQA. The EIR contains an adequate discussion of the eligibility of the Wagon Wheel buildings for listing on the California Register of Historical Resources and the National Register of Historic Places. (See, e.g., Twaine Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 681-685 [response to comments adequate when environmental record reviewed as a whole].)
Also in August 2008, three reports were submitted to the City assessing the economic feasibility of rehabilitating and/or reusing the existing Wagon Wheel Motel, Wagon Wheel Restaurant and El Ranchito Restaurant. Pat McCarthy Construction, Inc., prepared a preliminary budget study for the selective demolition and complete rehabilitation of the Wagon Wheel Motel, the Wagon Wheel Restaurant and the El Ranchito Restaurant on behalf of Daly. The study included the scope of work and cost breakdown for two proposals: (1) Rehabilitation of the existing structures pursuant to current building code standards for reuse as the Wagon Wheel Motel/Restaurant and the El Ranchito Restaurant, and (2) rehabilitation of the existing structures pursuant to current building code standards for reuse of the structures as commercial office and/or commercial retail space. The report contained a summary of the existing building conditions. The report concluded that the cost to rehabilitate the existing structures for the two proposals would be approximately the same and that there would be substantial reconstruction necessary to bring the buildings up to code and reoccupy. The report estimated it would cost $6,705,000 to renovate/rehabilitate the existing buildings for reoccupation.
McCarthy submitted a supplemental letter concluding that rehabilitation was infeasible due to extensive termite infestation and dry rot and that "in order to meet both seismic and current building code requirements, the rehabilitation of the Wagon Wheel buildings will require the demolition of the existing structures followed by reconstruction with new materials that recreate the look of the originals with some reuse of existing materials that still have some integrity.... There is no possible way to guarantee that the existing facades can be preserved due to missing elements and deteriorated structural members."
Economic Research Associates, also on Daly's behalf, prepared an analysis of the local market and the investment potential for two renovation scenarios: (1) Renovating the Wagon Wheel Motel and the two restaurants while maintaining their previous uses and (2) renovating the Wagon Wheel Motel and the two restaurants, but converting the motel into small office units. The report concluded that the two scenarios were "not financially viable and would not be pursued by any reasonably prudent investor, " and "would generate substantially less revenue for the City." The report was based on the poor condition of the structures, requiring $7.8 million to rehabilitate, and below market average revenues due to reduced visibility and accessibility caused by the recent modifications to Highway 1, the poor condition of the immediately surrounding properties, the poor demand for economy hotels and motels, and competition from the Esplanade Shopping Center and River Park development.
The three reports were included in the staff report prepared for the Planning Commission on September 18, 2008, and were attached to the proposed findings and statement of overriding considerations for the project.
Based on these reports and in response to comments on the DEIR, Daly's project manager prepared two memoranda assessing the financial feasibility of two alternatives to the proposed project. The first memorandum, submitted in early September 2008, assessed Alternative 2 and determined that development of this alternative would result in a $13,009,807 net loss to the company. This memorandum was cited to support the City's finding that Alternative 2 was financially infeasible.
On September 18, 2008, the Planning Commission reviewed the project and FEIR, including the feasibility analysis of the project alternatives. At that meeting, the Conservancy's president first suggested that a feasible alternative could be to omit the 5-acre Wagon Wheel site from the project and construct the project, as proposed by Daly, on the remaining acreage.
At the conclusion of the public hearing, the Planning Commission certified the FEIR and recommended approval of the project including necessary zoning approvals. The Planning Commission adopted findings and a statement of overriding considerations. The findings state, in part, that Alternatives 2, 3, and 4, which include preservation of the Wagon Wheel buildings, were infeasible, both financially and "based upon physical, technological and other factors that would preclude successful implementation." The findings were based on construction, marketing, and economic analyses contained in the record. The Planning Commission also found that, although two of the alternatives would reduce impacts on historical resources, they were less desirable to the City because they would not provide the same level of affordable housing and other economic benefits as the approved project.
The Conservancy appealed the Planning Commission's decision to the City Council on October 6, 2008. The appeal asserted that the FEIR should have analyzed an alternative that would allow for full development of the majority of the site, but retain a restored Wagon Wheel motel and related buildings in their historic locations because it had "not been shown that the Project would be financially infeasible on approximately 60 acres rather than 64" (the "project minus historic buildings" alternative).
In response, Daly prepared a second memorandum, dated October 27, 2008, analyzing the feasibility of the Conservancy's suggested alternative. It stated that implementing the alternative would result in the loss of 100 residential units, with a corresponding gross project revenue of $115,564,000 and construction costs, including Wagon Wheel building rehabilitation and reuse, of $128,083,467, resulting in a net loss of over $12.5 million. This calculation included an additional $9,804,581 in increased site improvement costs (water and wastewater related regional improvements) required by the development agreement between Daly and the City.
The memorandum was provided to the City Council in a staff report dated November 18, 2008. The memorandum was independently reviewed by the City's Community Development Director.
At the November 18, 2008, appeal hearing before the City Council, the Conservancy submitted another letter requesting adaptive reuse of the Wagon Wheel buildings. The letter disputed the memorandum submitted by Daly concluding that reuse was financially infeasible. The Conservancy, however, provided no supporting financial or technical data. The City Council subsequently upheld the Commission's decision to certify the EIR and adopt the findings and Statement of Overriding Considerations approved by the Planning Commission.
At a public hearing on January 27, 2009, the City Council adopted ordinances approving a general plan amendment, specific plan, zone change, and development agreement for the project. A notice of determination was filed on January 28 and posted through March 5, 2009. Second readings of the ordinances occurred at the February 3, 2009, City Council meeting.
On March 2, 2009, the Conservancy filed a petition for writ of mandate. On September 30, 2009, the trial court denied the petition. In its statement of decision, the trial court criticized the City for "burying the [State Historic Preservation Officer's] comments and failing to offer any semblance of a 'detailed, ' 'reasoned' response to the State's designated officer." Because the Conservancy failed to raise the issue, the trial court deemed the issue had been waived. The trial court subsequently denied the Conservancy's motion to vacate and for a new trial. The Conservancy filed a timely appeal. This court issued a temporary stay of the demolition of the Wagon Wheel structures and, following briefing, issued a writ of supersedeas on January 22, 2010.
DISCUSSION
Standard of Review
"In reviewing an agency's compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts' inquiry 'shall extend only to whether there was a prejudicial abuse of discretion.' [Citation & fn. omitted.] Such an abuse is established 'if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' [Citations & fn. omitted.] [¶]... [¶] An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: the appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review under CEQA is de novo. [Citations.]" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.)
"Whether an 'agency has employed the correct procedures, ' is reviewed 'de novo... "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation]....' [Citation.] But an 'agency's substantive factual conclusions' are 'accord[ed] greater deference.' [Citation.] 'In reviewing for substantial evidence, the reviewing court "may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable, " for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." [Citation.]' [Citation.]'' (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 531, quoting from Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.) For purposes of CEQA, substantial evidence "'means 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.'" (Cal. Code of Regs., tit. 14, § 15384, subd. (a).)
Further references to the Code of Regulations, title 14, sections 15000 et seq. are referred to as CEQA Guidelines.
"We must also bear in mind that we do not 'pass upon the correctness' of the EIR's environmental conclusions, but only its sufficiency as an environmental document. [Citation.] 'We may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable.... We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements.' [Citations." (Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 328-329.)
The CEQA Standard for a "Reasonable Range of Alternatives"
As with our review of other elements of an EIR, the only role for this court in reviewing an EIR's discussion of alternatives is to ensure that the public and responsible officials are adequately informed of the environmental consequences of their decisions before they are made. (Berkeley Keep Jets Over the Bay Com. v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1356.)
CEQA requires an EIR to identify and discuss a reasonable range of alternatives to a proposed project, or its location, that would feasibly attain most of the project's basic objectives while reducing or avoiding any of its significant effects. (§ 21002.) The EIR must evaluate the comparative merits of those alternatives. (CEQA Guidelines, § 15126.6, subd. (a).) The requirement stems from the policy that public agencies should require the implementation of feasible alternatives or feasible mitigation measures to reduce a project's significant environmental impacts. (§ 21002.) Our Supreme Court has described the discussion of mitigation and alternatives as "the core of an EIR." (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.)
An EIR need not discuss every conceivable alternative to a project. (CEQA Guidelines, § 15126.6, subd. (a).) The nature and scope of the alternatives to be studied in an EIR is governed by the rule of reason. (In re Bay-Delta Progammatic EIR Coordinated Proceedings v. Davis (2008) 43 Cal.4th 1143, 1163; City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 920.) Under the rule of reason, an EIR needs to discuss only those alternatives necessary to permit a reasoned choice. (CEQA Guidelines, § 15126.6, subd. (f); Residents Ad Hoc Stadium Comm. v. Board of Trustees (1979) 89 Cal.App.3d 274, 283.)
The range of alternatives examined in an EIR should be designed to foster informed decisionmaking and public participation. (CEQA Guidelines, § 15126.6, subds. (a)-(f); see Mann v. Community Redev. Agency (1991) 233 Cal.App.3d 1143, 1151 [EIR should provide "enough of a variation to allow informed decisionmaking"].) When an EIR discusses a reasonable range of alternatives sufficient to foster informed decisionmaking, it is not required to discuss additional alternatives substantially similar to those discussed. (Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1358-1359; Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 491.) An EIR is not required to include alternatives suggested by members of the public if it discusses a reasonable range of other alternatives. (CEQA Guidelines, § 15126.6, subds. (a) & (c); see Save San Francisco Bay Assn. v. San Francisco Bay Conserv. & Dev. Comm'n. (1992)10 Cal.App.4th 908, 919 [city not required to include proposed alternatives because their advantages and disadvantages did not substantially differ from the five prototypical alternatives selected for in-depth discussion].)
Under the applicable standard, an EIR may be found legally inadequate only if the range of alternatives it contains is unreasonable in the absence of the omitted alternatives. (2 Kostka & Zischke, Practice under the California Environmental Quality Act (Cont.Ed.Bar 2010) § 15.17, p. 747.) As the courts have stated repeatedly, "'[a]bsolute perfection is not required; what is required is the production of information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned.' [Citation.]" (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1029.) The selection of alternatives discussed "will be upheld, unless the challenger demonstrates 'that the alternatives are manifestly unreasonable and that they do not contribute to a reasonable range of alternatives.' [Citation.]" (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 988.)
The FEIR Discusses a Reasonable Range of Alternatives
The EIR analyzes five project alternatives and includes a comparative matrix. The first, the "no project" alternative, did not meet project objectives because it would eliminate new housing opportunities and perpetuate urban blight. This alternative was determined to be the "environmentally superior" alternative.
Alternative 2 proposed to eliminate the two 25-story high-rise residential towers and to preserve the Wagon Wheel historic buildings. A 15-acre school site would be added. Under this alternative, significant impacts would be mitigated, including allowing the Wagon Wheel buildings to be "used for their original purposes or appropriate adaptive reuse."
Alternative 3 proposed redevelopment of existing commercial and residential uses, but without changing existing city zoning and general plan limits and criteria. Again, the Wagon Wheel buildings would be preserved for their "historic uses or adaptive reuses."
Alternative 4 considered redevelopment by increasing commercial uses, while substantially reducing proposed residential uses. This proposal also would have preserved the Wagon Wheel buildings. The EIR also considered a fifth alternative, where development would occur at another location. This alternative was determined to be infeasible in light of the project objective of redevelopment of this particular site.
The Conservancy asserts that the EIR is legally insufficient because it failed to analyze the Conservancy's proposed alternative, i.e., the project minus the five-acre Wagon Wheel parcel, or other alternatives analyzing various adaptive reuses of the buildings. We disagree for several reasons.
First, the Conservancy did not propose its "project minus historic uses" alternative until after the close of the public comment period. Nothing in CEQA requires the City to consider an alternative proposed after the public comment period has closed. Alternatives that are proposed after the close of the public comment period may, but need not, be considered. (§ 21091, subd. (d)(1); CEQA Guidelines, § 15207; Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 914, 925, fn. 11.) Because there is no legal duty to respond to late comments, the claimed inadequacy of responses to late comments cannot be a basis for challenging the legal adequacy of an EIR. (Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1111.)
If the agency chooses to do so, as the City did here, it may respond to late comments in staff reports and other material submitted outside the four corners of the EIR. Alternatively, the agency may respond to the late claims in staff remarks made at the public hearing. (A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1808-1809.) The agency may reject newly-proposed alternatives in its findings approving the project. (See Foundation for San Francisco's Architectural Heritage v. City & County of San Francisco (1980) 106 Cal.App.3d 893, 910 [alternative suggested after final EIR completed impliedly found infeasible by findings rejecting similar alternatives]; see also, Sequoyah Hills Homeowners Assn. v. City of Oakland (1993)23 Cal.App.4th 704, 715, fn. 3.)
Despite its late submission, the Conservancy's proposed alternative was addressed in a staff report to the City Council, by an economic analysis from the developer showing that the Conservancy's alternative would not be financially feasible. It was expressly rejected in the findings approving the project.
Moreover, as the City's staff report noted, the Conservancy's proposed alternative was not substantially different from those analyzed in the EIR. The agency need not include other suggested alternatives in an EIR where their advantages and disadvantages do not substantially differ from the alternatives included in the EIR. (Save San Francisco Bay Ass'n. v. San Francisco Bay Conserv. & Dev. Corp., supra, 10 Cal.App.4th at p. 922; Marin Mun. Water Dist. v. KG Land Cal. Corp. (1991)235 Cal.App.3d 1652, 1664 [EIR properly rejected several suggested alternatives that were variations on alternative discussed in draft EIR].)
Onsite preservation of the Wagon Wheel buildings was discussed in conjunction with Alternatives 2, 3, and 4. An EIR need not include multiple variations on the alternatives that it does consider. The EIR is not defective for not discussing variations on each theme when the relative advantages and disadvantages of other alternatives can be assessed from a review of the alternatives presented in the EIR. (See, e.g., Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra, 134 Cal.App.3d at p. 1028 [EIR considered reasonable range of alternatives in proposal to amend general plan when it considered 20, 000 unit proposed plan, 7500 units, 10, 000 units and 25, 000 units and no development-EIR was not also required to study a 15, 000-unit alternative]; see also, Mira Mar Mobile Community v. City of Oceanside, supra, 119 Cal.App.4th at p. 491 [EIR need not consider in detail every conceivable variation of alternatives stated].)
The City fulfilled CEQA's mandate to discuss a reasonable range of alternatives. The EIR contains sufficient information to inform the decisionmakers and the public of various alternatives to the project and their environmental impacts, including impacts of the alternative suggested by the Conservancy. Nothing more is required.
CEQA Standards for Finding Alternatives Infeasible
We review the City's findings that alternatives are infeasible under the substantial evidence standard. (Preservation Action Council v. City of San Jose, supra, 141 Cal.App.4th at p. 1356.)
Section 21002 states: "[I]t is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects.... The Legislature further finds and declares that in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof." Thus, an agency should not approve projects as proposed if feasible alternatives or mitigation measures exist that would substantially lessen the project's significant environmental effects.
The term "feasible" is defined in section 21061.1 as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social and technological factors." An alternative is not feasible if it cannot attain most of the project's basic objectives. (In re Bay-Delta Programmatic EIR Coordinated Proceedings v. Davis, supra, 43 Cal.4th at p. 1157; see Sequoyah Hills Homeowners Assn. v. City of Oakland, supra, 23 Cal.App.4th at p. 715 [agency not required to consider lower density alternative that would be inconsistent with project's primary goal of providing affordable housing].) The agency's finding that alternatives are infeasible must contain specific reasons for rejecting each of the alternatives described in the EIR. (CEQA Guidelines, § 15091, subd. (a).)
At the project approval stage, the agency must weigh the relative advantages and disadvantages of the project and the alternatives examined in the EIR. The agency makes the decision after weighing environmental factors together with the entire range of legal and policy considerations relevant to its action on the project. (§ 21081, subd. (a)(3); CEQA Guidelines, § 15091.) After weighing these factors, an agency may conclude that an alternative is impractical or undesirable from a policy standpoint and reject it as infeasible on that ground. (See, e.g., City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, 416-417 [alternatives to proposed general plan amendment were infeasible because they would conflict with city's growth management program]; Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 44 [finding that alternatives to housing project were infeasible because of the city's pressing need for additional housing]; Foundation for San Francisco's Architectural Heritage v. City & County of San Francisco (1980) 106 Cal.App.3d 893, 913 [upholding decision rejecting alternative of rehabilitating historic retail building in favor of new construction as infeasible based on evidence of increased construction costs, decreased tax revenues, and reduced employment opportunities].) Thus, if such project alternatives or mitigation measures are infeasible, projects may be approved if their benefits outweigh the adverse effects. (§ 21081, subd. (b); CEQA Guidelines, § 15093, subd. (a).)
The City's Findings that the Alternatives Were Financially Infeasible are Supported by Substantial Evidence
An alternative may be found infeasible on economic grounds. Economic viability is listed in the CEQA Guidelines as a factor that may be considered when assessing the feasibility of alternatives. (CEQA Guidelines §§ 15126, subd. (f)(1); 15364; see Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at pp. 575, 576, fn. 7 [agency's conclusion that alternative site was infeasible was supported by economic analysis that showed that site could not support a version of the project large enough to be economically viable]; and see Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco, supra, 106 Cal.App.3d at p. 913 [upholding decision rejecting alternative of rehabilitating historic retail building in favor of new construction as infeasible based on evidence of increased construction costs, decreased tax revenues, and reduced employment opportunities]; see also, Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1401 [evidence that reduced-sized project would not fully meet project objectives to enhance profits, and might not be economically viable, was sufficient to support infeasibility finding]; Marin Mun. Water Dist. v. KG Land Cal. Corp., supra, 235 Cal.App.3d at p. 1655 [EIR rejected various suggested alternatives as infeasible because of economic, environmental, and technological factors].)
Findings of economic feasibility must be supported by relevant economic evidence. (See San Franciscans Upholding Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656, 692 [detailed reports describing specific cost of various historic preservation alternatives were sufficient to support findings that alternatives were infeasible]; City of Fremont v. San Francisco Bay Area Rapid Transit Dist. (1995) 34 Cal.App.4th 1780, 1787 [evidence that alternative would cost $60 million more than proposed project was sufficient to support finding that alternative was infeasible]; see also Uphold Our Heritage v. Town of Woodside (2007)147 Cal.App.4th 587, 599, fn. 6.) The agency must independently review the information on economic feasibility submitted by the applicant. (Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1462.)
Some decisions on economic feasibility findings have applied a "prudent person" standard, holding that a determination that an alternative is economically infeasible must be supported by information demonstrating that the cost of the alternative is so great compared to the proposed project that a reasonably prudent person or property owner would not proceed with the alternative. (See, e.g., Uphold our Heritage v. Town of Woodside, supra, 147 Cal.App.4th at p. 600; San Franciscans Upholding the Downtown Plan v. City & County of San Francisco, supra, 102 Cal.App.4th at p. 693.)
An agency may use the opinion evidence of experts as substantial evidence on which to base its decisions. (Lewis v. Seventeenth Dist. Agricultural Assn. (1985) 165 Cal.App.3d 823, 831.); see also, Coastal Southwest Dev. Corp. v. California Coastal Zone Conservation Com. (1976) 55 Cal.App.3d 525, 532 ["opinion evidence of experts... is substantial evidence upon which... administrative decision may be based"]; see Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1503 [project applicant's letter demonstrating that project could not be reconfigured to accommodate impact-reducing alternatives was sufficient to support finding of infeasibility].) In Association of Irritated Residents v. County of Madera, supra, 107 Cal.App.4th at p. 1401, evidence that a reduced-sized project would not fully meet project objectives to enhance profits and might not be economically viable was sufficient to support infeasibility finding. (See also Sequoyah Hills Homeowners Assn. v. City of Oakland, supra, 23 Cal.App.4th at p. 715 [project sponsor's comments, based on market surveys, that lower density project would be inconsistent with objective of providing least expensive single-family housing in area supported infeasibility finding]; and see Greenbaum v. City of Los Angeles (1984) 153 Cal.App.3d 391, 412 [proper for agency to rely on opinions of experts who prepared EIR that data was correct].)
The reports submitted to the City stated that renovation and reuse of the Wagon Wheel buildings was economically prohibitive because of the rehabilitation costs, and because the reconstruction challenges, including dry rot and insect infestation, made preservation unlikely, finding that "the significant structural elements of the buildings are unsound and therefore unsalvageable." The two potential reuse scenarios-using the motel/restaurant for their original intended purpose, or reusing them for office space-were determined to be economically infeasible based on an independent market and economic analysis by experts in the areas of construction, rehabilitation, and marketing.
The Conservancy asserts the financial information relied on by the City in finding the preservation alternatives infeasible was flawed for a variety of reasons, including: (1) the reports are based on unaccepted economic methodology and do not include the profit which will be made when the residential units are sold, (2) "there are difficulties with the land residual and the discounted cash flow method valuing land which have so many variables and assumptions that a slight change in any one of them could cause a big difference, " (3) the construction cost estimates do not take into account the building code exemptions and tax credits available for historic structures, (4) most of the monetary and infrastructure benefits to the City would still be realized if the project minus historic buildings alternative was approved, (5) the developer's estimate that preserving the Wagon Wheel buildings would require the reduction of 100 housing units is wrong because the project is flexible and the housing units could be made up elsewhere, and (6) the McCarthy report is faulty because it includes many unnecessary improvement costs or improvements required because the developer did not take immediate steps to preserve the buildings and protect it from vandalism.
In approving the FEIR, the City exercised its discretion not to give the Wagon Wheel buildings local landmark status.
To constitute substantial evidence, comments by members of the public must be supported by an adequate factual foundation. (Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 199.) Interpretation of technical information requires an expert evaluation. Testimony by members of the public on such issues does not qualify as substantial evidence. (See, e.g., Porterville Citizens for Responsibility Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 907-908 [neighbors' general concern about erosion and drainage were not substantial evidence because neighbors had no demonstrated expertise in those subject matters]; Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 583 [neighbors "lay reading" of technical report on hazardous materials contamination was not substantial evidence because neighbors did not show expertise that would qualify them to interpret report]; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1417 [residents' opinions that road widening would prevent continued recreational use and have other impacts was not substantial evidence because there was no specific factual foundation for the claims]; see also San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 675 ["In the context of an administrative mandamus action challenging an agency's determinations under CEQA..., substantial evidence may include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts, but not argument, speculation, unsubstantiated opinion, or clearly erroneous evidence"].)
Our Supreme Court's comments in Laurel Heights Improvement Association v. Regents of University of California (1983) 47 Cal.3d 376, are instructive. In Laurel Heights, the Court of Appeal reversed approval of an EIR on the ground that environmental sampling studies relied on by the Regents were inadequate and unreliable because, among other things, they involved ground-level samples only and not air samples. Our Supreme Court concluded the Court of Appeal exceeded the scope of judicial review: "The Court of Appeal in effect performed its own scientific critique of the studies and found the Regents should not have relied on them. This approach is inconsistent with the principle that "[t]he court does not have the duty of passing on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document.' [Citation.]... The issue is not whether the studies are irrefutable or whether they could have been better. The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the Regents' finding of mitigation. We find the studies are sufficient for that purpose." (Id. at p. 409.) In a footnote, it added: "We do not suggest that a court must uncritically rely on every study or analysis presented by a project proponent in support of its position. A clearly inadequate or unsupported study is entitled to no judicial deference. The Association, however, has failed to demonstrate that the two studies are clearly inadequate or unsupported." (Id. at p. 410, fn. 12; see also Federation of Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1259 ["Challenges to the scope of the analysis, the methodology for studying an impact, and the reliability or accuracy of the data present factual issues, so such challenges must be rejected if substantial evidence supports the agency's decision as to those matters and the EIR is not clearly inadequate or unsupported"].)
The Conservancy did not provide any testimony or report or other evidence from a financial expert or other person with technical expertise to support any of its conclusions. There is nothing in the record that the Conservancy's president, the source of its comments, had expertise in any of the relevant fields. In the absence of such expertise, the City was not required to accept these comments as evidence. (See, e.g., Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 157 [testimony by real estate agent on potential decline in nearby property values was not substantial evidence because it was an imprecise opinion without supporting verifiable data].) In short, the Conservancy asks this court, as it did the court below, to disregard the financial evidence presented by experts and accepted by the City merely because it disagrees with the conclusions of the experts. The Conservancy has not met its burden in this respect. It provides only "argument, speculation and unsubstantiated opinion" and not "facts, reasonable assumptions predicated upon [or] expert opinion supported by facts" as required by CEQA. (CEQA Guidelines, § 15384, subds. (a) & (b.).)
Remaining Contentions
The Conservancy's remaining arguments also are without merit. The Conservancy contends that the economic information as to feasibility was required to be within the four corners of the EIR rather than merely "in the record." The argument has been repeatedly rejected by the courts. (E.g., San Franciscans Upholding the Downtown Plan v. City & County of San Francisco, supra, 102 Cal.App.4th at pp. 689-690; Sequoyah Hills Homeowners Assn. v. City of Oakland, supra, 23 Cal.App.4th at p. 715, fn. 3.) The agency's reasons for excluding potential alternatives from the EIR that are found to be infeasible or incapable of fulfilling project objectives may be included in responses to comments contained in the final EIR (City of Long Beach v. Los Angeles Unified School Dist., supra, 176 Cal.App.4th at p. 922) or in the administrative record (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 569.)
The Conservancy also asserts the financial information prepared by Pat McCarthy Construction, Inc., should be disregarded for bias because that firm hopes to become a subcontractor on the project. Again, the law is to the contrary. Responses to comments may be prepared by the lead agency's staff, by a consultant retained by the agency, or by a consultant retained by the project applicant. (§ 21082.1; Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1397; see also Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1503 [project applicant's letter demonstrating that project could not be refigured to accommodate impact-reducing alternative was sufficient to support finding of infeasibility]; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at pp. 764-765 [contention that report prepared by applicant's expert should be disregarded is meritless as the courts have rejected similar assertions that decisions of public agencies are tainted by input from economic analysts and experts retained by the interested parties].)
The Conservancy's contention that that the City did not independently review the economic reports submitted to it is contrary to evidence in the administrative record. (See § 21082.1, subd. (c); Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 369 [agency must independently review and analyze evidence and must adopt a finding that the final EIR as a whole reflects the agency's independent judgment].) The comments made by the council members at the public hearings evidenced their knowledge of the information contained in those reports. Both the staff reports and City Council's findings contain statements that the reports were independently reviewed by City staff and the City Council. A specific finding that the decisionmakers reviewed and considered the information in the EIR is sufficient evidence that they actually did so. (Greenbaum v. City of Los Angeles, supra, 153 Cal.App.3d at p. 402.) Even without such a finding, the record may otherwise show that the decisionmakers reviewed the EIR or the information in it. (Save San Francisco Bay Assn. v. San Francisco Bay Conserv. & Dev. Com., supra, 10 Cal.App.4th at p. 935.)
The record states: "The Council has independently reviewed and finds persuasive the economic and market assessment of adaptive reuse prepared by Economic Research Associates.... The City has also independently reviewed and finds persuasive the report prepared by Pat McCarthy Construction, Inc., ... and the supplemental letter with respect to construction costs and physical feasibility of rehabilitating the three historic structures on the Project site.... City Staff has also independently reviewed the information submitted by ERA and Pat McCarthy Construction, Inc., and based on their experience in assessing the accuracy and validity of such information, have determined that the reports prepared by ERA and Pat McCarthy Construction are generally consistent with professional standards for such work...."
Conclusion
The court's comment in Dusek v. Redevelopment Agency of the City of Anaheim (1985) 173 Cal.App.3d 1029, 1043, is relevant here: "[T]he Duseks have a fundamental misconception. They continue to assert that the Agency has not and cannot identify overriding considerations to justify demolition of a national historic landmark. But CEQA does not compel retention of old buildings in the name of historical preservation. The Agency found that removal of the building, despite its historical significance, fostered its continuing goal of redevelopment. Implementation of the redevelopment plan... can justify clearance of the Pickwick under CEQA."
This court does not pass on the validity of the conclusions expressed in an EIR, but only on the sufficiency of the report as an informative document. "'A court's task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. [Courts] have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so.' [Citation.] The standard of review is not de novo but the traditional, deferential substantial evidence test...." (Concerned Citizens of South Central Los Angeles v. Los Angeles School Dist. (1994) 24 Cal.App.4th 842, 843.)
We conclude the EIR contains sufficient alternatives and that the discussion of those alternatives meets CEQA standards. We also conclude that the administrative record contains substantial evidence supporting the City's decision that the alternatives which preserve the Wagon Wheel buildings are economically infeasible. The City did not abuse its discretion in balancing the competing policies and objectives set out in its redevelopment plan and the EIR in certifying the EIR.
The judgment is affirmed. Respondents shall recover costs on appeal.
We concur: GILBERT, P.J., YEGAN, J.