Opinion
E052300 Super.Ct.No. INC084911
03-21-2012
SIERRA CLUB et al., Plaintiffs and Appellants, v. CITY OF PALM DESERT et al., Defendants and Respondents; CORNISHE OF BIGHORN, LLC, Real Party in Interest and Respondent.
Worden Williams, D. Wayne Brechtel and Yin T. Ho for Plaintiffs and Appellants. Best Best & Krieger, Michelle Ouellette and Charity Schiller for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Affirmed.
Worden Williams, D. Wayne Brechtel and Yin T. Ho for Plaintiffs and Appellants.
Best Best & Krieger, Michelle Ouellette and Charity Schiller for Defendants and Respondents.
Allen Matkins Leck Gamble Mallory & Natsis, Patrick Perry and Heather S. Riley for Real Party in Interest and Respondent.
I. INTRODUCTION
This CEQA case concerns a project to build two 10,000-square-foot single-family homes on an approximately 2.5-acre portion of an 11.87-acre parcel of undeveloped, sloping terrain on the southern boundary of the City of Palm Desert (the City). One of the home sites is to be approximately 240 yards from a 30-acre "lambing pen" in which peninsular bighorn sheep (PBS) are bred for release into the wild. The lambing pen is part of a captive breeding program for PBS, which the Bighorn Institute (the Institute), a private, nonprofit corporation, has operated in the hills south of the 11.87-acre parcel since the mid-1980's.
The City approved a tentative tract map (TTM) after certifying an environmental impact report (EIR) and adopting a statement of overriding considerations (SOC) for the project, concluding its specific economic and other benefits outweighed its potential impacts on the Institute's captive breeding program. The Sierra Club and the Center for Biological Diversity (appellants), objected to the project during the environmental review process, and petitioned the trial court for a writ of administrative mandate (Code of Civ. Proc., § 1094.5) to set aside the City's actions approving the project on the ground they violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and the Subdivision Map Act (Gov. Code, § 66474).
All further statutory references are to the Public Resources Code unless otherwise indicated.
In a separate cause of action, appellants alleged that the project would result in an unauthorized "take" of PBS in violation of the Fish and Game Code, and sought a judicial declaration that the project approvals would not insulate the City or City Council (respondents), or the developer, Cornishe of Bighorn LLC (Cornishe), from liability in the event the implementation of the project or other "future activities" result in an unauthorized take of PBS. The trial court denied appellants' writ petition and complaint for declaratory relief, and entered judgment in favor of respondents.
On this appeal, appellants claim the EIR is legally inadequate because it did not sufficiently analyze another two-home alternative, the Hillside Limited Alternative (HLA), which would have been built 300 yards from the lambing pen. To the extent the HLA was considered in the EIR, appellants claim its elements were changed and it became confused with a one-unit alternative that could have been built 400 yards from the lambing pen, rendering informed consideration of the two-home HLA impossible. Appellants also claim the EIR failed to consider a reasonable range of alternatives in not specifically considering a one-unit alternative in the HLA site area.
Additionally, appellants claim that the City's findings rejecting the HLA as economically infeasible and as failing to meet several key project objectives were based on the "wrong alternative" and are unsupported by substantial evidence; the SOC also confused the HLA with a one-unit alternative, and insufficient evidence supports the City's determination in the SOC that economic and other considerations outweighed the potentially adverse impacts of the two-home project on PBS. Lastly, appellants claim that the approval of the project violated the Subdivision Map Act and the Fish and Game Code, and they are entitled to declaratory relief that the project approvals will not insulate Cornishe or respondents from liability in the event the implementation of the project or other "future activities" result in an unauthorized take of PBS.
We affirm the judgment in all respects. In sum, the EIR adequately considered the HLA and did not misrepresent its elements or confuse it with other alternatives; it was unnecessary for the EIR to specifically consider a one-unit alternative in the HLA site area because substantial evidence showed that any such alternative was economically infeasible; substantial evidence supports the City's findings rejecting the HLA and the overriding considerations in the SOC; the project approvals do not violate the Subdivision Map Act or the Fish and Game Code; and appellants are not entitled to declaratory relief.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the administrative record before the City Council in February 2009 when it passed resolution No. 09-13 certifying the EIR as complying with CEQA, adopting CEQA findings, adopting the SOC, and approving TTM 31676 for the project. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 421.)
A. The 11.87-acre Parcel
The 2.5 acre, two-home project site lies within a long, roughly triangular, 11.87-acre parcel of sloping, undeveloped land on the southern boundary of the City and owned by the project applicant, Cornishe. The parcel is bordered on the south by the Santa Rosa Mountains State Game Refuge in unincorporated Riverside County, including approximately 300 acres of mountainous terrain originally leased and later purchased by the Institute from the federal Bureau of Land Management (the BLM).
The northernmost portion of the 11.87-acre parcel lies within the floodplain of Dead Indian Creek, a seasonal tributary under the jurisdiction of the United States Army Corps of Engineers and the California Department of Fish and Game (CDFG). Legal access to the 11.87-acre parcel is provided by a 30-foot wide recorded easement, extending north of the parcel and across Dead Indian Creek and through the Canyons at Bighorn, a 450-home country club and golf course community. The Canyons at Bighorn borders the 11.87-acre parcel on the north, west, and east.
Elevations of the 11.87-acre parcel range from a low of around 775 feet above sea level (asl) at its northernmost portion near Dead Indian Creek to a high of 880 feet asl at its westernmost boundary. State Route 74 is approximately 0.5 miles west of the parcel. B. The Institute's Captive Breeding Program
Created in 1982, the Institute is a private, nonprofit organization, dedicated to the conservation of PBS. The Institute operates under the direction of the CDFG and the U.S. Fish and Wildlife Service (USFWS), and is a federally designated "recovery facility." The Institute conducts research and operates a program designed to support declining PBS populations, known as the Captive Breeding and Wild Population Augmentation Program or captive breeding program. The Institute's facilities include offices, laboratories, biologists' residences, and pens for its captive herd, all located on the 300-acre Institute property south of the 11.87-acre parcel and project site.
PBS are an endemic subspecies of bighorn sheep, existing only in the peninsular mountain ranges of Riverside and San Diego Counties, including the Santa Rosa and San Jacinto ranges. The total population of PBS declined from 1,171 in 1979 to 380 in 1991, and recovered to around 700 in 2006. In 1996, the subpopulation of PBS in the northern Santa Rosa Mountains consisted of only 21 adults, including 11 ewes; in 2002, the subpopulation in the San Jacinto Mountains consisted of only four ewes. PBS population declines are attributed to a variety of factors, including disease, fragmentation, urbanization, and habitat destruction. A 1998-2002 study of wild lambs found that 43 percent of their mortality in the wild was caused by the direct or indirect effects of urbanization.
The primary goal of the Institute's captive breeding program is to produce healthy PBS that are genetically and behaviorally suitable for release into wild bighorn populations. Between 1985 and 2008, the Institute released 120 captive-reared PBS into the wild—97 into the northern Santa Rosa Mountains and 23 into the San Jacinto Mountains. The captive breeding program is credited for preventing the extinction of PBS in these local mountain ranges.
The Institute's 30-acre, circular "lambing pen" for breeding captive-born PBS is located on the Institute's property around 150 feet, or 50 yards, from the southernmost corner of the 11.87-acre parcel, and around 240 yards from the two-home project site. The lambing pen has been in place since 1984, and encircles a rugged hilltop with elevations between 870 and 1,150 feet. Adult rams are maintained in a similar seven-acre enclosure. Alfalfa hay and pellets supplement native vegetation in the lambing pen and ram enclosure, and the captive sheep are also provided with water, salt, and mineral blocks.
Each year between August and December, the Institute combines rams and ewes for breeding. During the lambing season, January to June, lambs are born in the lambing pen. The lambing pen provides an isolated and quiet environment for the ewes and lambs. Isolation is considered critical to the recovery of the bighorn, in part because it minimizes stress resulting from exposure to human activities. Over 90 percent of all lambs born at the Institute have been born on the north/northeast side or slope of the lambing pen, facing the 11.87 acre parcel.
"Habituation" of PBS to human activities is considered detrimental to the bighorn's chances of survival in the wild. Because habituated sheep are not fearful of humans, they may seek food and water in urban areas, and may have difficulty foraging on native feeds and finding water sources in the wild. Habituated sheep may also dissociate themselves from the wild herd, and have an impaired perception of threats from hunters, traffic, or natural predators. Habituated sheep are thus considered "unsuitable for release into the wild."
Due to the detrimental effects of human habituation on PBS, the Institute follows a protocol that minimizes the exposure of its captive PBS to human activity. The Institute is not open to the public, and its biologists follow feeding and observation routines that control their exposure to the bighorn. These conditions allow the captive-reared bighorn to remain wild and not habituated to human activities. C. The 400-yard Buffer, Established in 1991
In 1991, the City established a 400-yard buffer zone around the lambing pen as a mitigation measure for the Canyons of Bighorn, then known as the Altamira project. As indicated, the Canyons of Bighorn is located across Dead Indian Creek and north of the 11.87-acre parcel. It encompasses 352 acres and consists of approximately 450 homes oriented to an 18-hole "regulation" golf course.
In 1989, during the environmental review process for the Altamira project, several parties, including the Institute, the BLM, and the City of Rancho Mirage, expressed concern that the project would adversely impact the Institute's captive breeding program. As a mitigation measure, the City of Rancho Mirage proposed creating an "environmental buffer or conservation easement consisting of natural open space in sufficient acreage to protect the bighorn . . . ."
A consulting biologist for the City solicited the opinions of 29 bighorn sheep experts from various state and wildlife agencies, and concluded that a protective "buffer zone" between the Altamira project and the lambing pen would be an appropriate mitigation measure. The consultant recommended a 600-yard buffer zone and indicated that a buffer of less than 400 yards would be "inappropriate." According to the consultant, his conclusion "fully recognize[d] and incorporate[d] all of the extremes in the information gathered" and represented "the weight of the evidence." The CDFG also supported a minimum 400-yard buffer.
In the final environmental impact report for the Altamira project, the City adopted a minimum 400-yard buffer zone, running in a north/northeasterly direction around the lambing pen, as a mitigation measure. Accordingly, no part of the Altamira project was built within the 400-yard buffer. D. All But a Quarter-acre of the 11.87-acre Parcel Lies Within the 400-yard Buffer
The Altamira project developers did not own the 11.87-acre parcel, and all but approximately 9,900 square feet, or less than one-quarter acre of the 11.87-acre parcel, lies within or south of the 400-yard buffer. As noted, the southernmost part of the 11.87-acre parcel is approximately 150 feet north of the lambing pen.
As a condition for approval of the Altamira project, its developers were required to "negotiate in good faith to purchase" the parcel, then known as the Del Gagnon property. The owners refused to sell, however, and sued the City concerning the 400-yard buffer. The owners and the City entered into a settlement agreement confirming that the 400-yard buffer was not binding on the 11.87-acre parcel. E. The Original 38-unit Proposal
In December 2005, a draft environmental impact report (the DEIR) was submitted for the Cornishe project. At that time, the proposal was to develop 38 townhomes in seven multiunit structures, with a centrally located park and swimming pool, on 4.32 acres of the 11.87-acre parcel. Streets and a primary access road from the north across Dead Indian Creek were to be built on one acre, and the other 6.55 acres of the 11.87-acre parcel were to remain open space. A secondary access road was to enter the property from the east, through the Indian Cove area of the Canyons at Bighorn. The DEIR concluded that the 38-unit project would have significant, unavoidable "visual and aural" impacts on the PBS at the Institute, as well as significant impacts on air quality, noise, and traffic. F. The DEIR's Discussion of the HLA
In 2003, Cornishe submitted an application to the City to approve its original TTM for the parcel (TTM 31676), which would have developed 57 units on four lots, the maximum residential density allowed under the City's then-existing general plan and zoning designations. In 2004, the City updated its general plan and changed the land use designation of the parcel from "Low Density Residential" to "Low Density Residential Study Zone." This change allowed the City to establish the appropriate residential density of the parcel through its pending TTM review process. Cornishe then revised TTM 31676 to reduce the number of dwelling units from 57 units on four lots to 38 units to be built in seven multiunit structures.
Apart from a "no project" alternative, the DEIR discussed two alternatives to the original 38-unit project, namely, an eight single-family unit alternative (the Reduced Project Alternative) and a two single-family unit alternative (the HLA). Both smaller-scale alternatives would have eliminated the need for the larger access road across Dead Indian Creek, an issue of concern to representatives of the Canyons at Bighorn, and would have limited access to the property from the east, through the Indian Cove area of the Canyons at Bighorn.
The DEIR concluded that the HLA was the environmentally superior alternative because it would reduce impacts "in all issue areas," including short-term, construction-phase impacts on air, noise, and traffic, and would also avoid "the significant biological resources impacts upon the Bighorn Institute," the only area of significant, long-term impact identified in the DEIR. The DEIR stated that concern for habituation impacts on the Institute's peninsular bighorn sheep was the "primary factor" in developing the HLA.
As discussed in the DEIR, the HLA contemplated constructing two single-family homes on separate lots in the far northeast corner of the 11.87-acre parcel, with each home having no fewer than 5,000 to 10,000 square feet of "usable interior spaces." Each lot was estimated to be 0.75 to 1.5 acres in size, and "[a]ll improvements" were to "avoid sensitive habitat along Dead Indian Creek." The northeast corner was selected because it is as far as possible from the lambing pen and as near as possible to existing and future dwellings in the Indian Cove area of the Canyons at Big Horn. The design of the two homes was to "achieve a completely passive character that appears as natural [as possible] when seen from the lambing pen," and each was to be "set or excavated into the hillside in order to minimize the structural profile of each as seen from the south," that is, as seen from the lambing pen. Each home was to be oriented to the north with no "functional areas or facilities," such as yards, patios, surface parking, or lighting south of the properties. The homes were expected to serve as examples of "sustainable desert residential design."
No preliminary site plan showing the specific configuration of the HLA was included in the DEIR, as none was available when the DEIR was circulated in December 2005. Thus, the DEIR did not show exactly where the HLA lots would be located on the 11.87-acre parcel. A map on page 261 of the DEIR, showing the far northeast corner of the parcel (figure 29), indicated it was the "[a]pproximate [l]ocation" of the HLA.
The DEIR also stated, however, that the HLA homes would be built "300 to more than 600 yards [from the lambing pen], depending on which point in the pen is selected." The DEIR indicated that the HLA would be built in the lower elevations of the 11.87-acre parcel. A diagram in the DEIR showed that one of the HLA lots was 790 feet to 805 feet asl; the second was 797 feet to 812 feet asl. G. Comments on the DEIR
The DEIR was circulated for public review and comment from December 16, 2005 through February 1, 2006. The City received comments on the DEIR from, among others, appellants, the Institute, the USFWS, and the CDFG. Notably, no one criticized the DEIR for failing to adequately analyze the HLA.
Instead, appellants and others criticized the DEIR's failure to discuss an alternative that lay entirely outside the 400-yard buffer. The Institute noted that the DEIR "completely ignored" the 400-yard buffer, and asserted that a one-house alternative that lay entirely outside the buffer would attain most of the objectives of the project. The CDFG requested that the project be "consistent with the 400 meter [sic] buffer that was negotiated . . . with the Canyons at Bighorn. . . ." The USFWS similarly disparaged the DEIR for failing to consider a one-house alternative in the far, northeastern corner of the project site "with a focus on respecting the integrity of the 400 yard buffer." H. Further Analysis of the HLA Following the DEIR
Shortly after the February 1, 2006, close of the public review and comment period on the DEIR, Cornishe abandoned its 38-unit proposal and proposed building four homes on four lots, located generally on the same five-acre portion of the 11.87-acre parcel as the 38-unit proposal was to be built. In a February 21, 2006, report to the City planning commission, City staff discussed Cornishe's new four-unit proposal and the DEIR, and pointing out that only around 10,000 square feet of the 11.87-acre parcel lay outside of the 400-yard buffer and that this entire 10,000 square-foot area lay entirely within Dead Indian Creek. In the same report, City staff requested additional time to study the HLA, and subsequently asked Cornishe to provide information concerning the total development costs and feasibility of constructing the HLA and the four-unit proposal.
In a March 2006 letter in response to the City's request (the Cornishe letter), legal counsel for Cornishe asserted that the HLA was economically infeasible and would result in a regulatory taking for which the City would be required to pay Cornishe just compensation. The letter first pointed out that the map on page 261 of the DEIR, showing the approximate location of the HLA, consisted of approximately 93,625 square feet of total site area, 40,100 square feet of which lay entirely within Dead Indian Creek. Cornishe pointed out that after deducting an additional 5,000 square feet for roads and other features, only 1.1 acres of the approximate 93,625-square-foot area shown on the map was available for development of the HLA, if the HLA were built entirely outside or south of Dead Indian Creek.
The Cornishe letter thus concluded it would not be feasible or even possible to develop the two-unit HLA on two 0.75- to 1.5-acre lots on the 1.1-acre portion of the HLA site area outside of Dead Indian Creek. To the contrary, the Cornishe letter noted that constructing two lots of that size in the identified HLA site area would require "extensive grading operations to place and stabilize a large volume of soil within Dead Indian Creek." The Cornishe letter asserted that such grading operations would be "extremely expensive, far exceeding the potential value that could be derived from increasing the developable size of the Property," and questioned whether the necessary permits to modify the drainage of the Dead Indian Creek could be obtained from state and federal authorities.
The Cornishe letter also pointed out that the identified HLA site area was the lowest in elevation on the 11.87-acre parcel, with an average elevation of around 790 feet, and that views from the property at these lower elevations would be "significantly diminished," further reducing the market value of the project. The Cornishe letter estimated that the fair market value of the two-unit HLA, if developed on the 1.1-acre portion of the HLA site located entirely outside of Dead Indian Creek, would not exceed $2 million if two homes were built on two half-acre lots, and would not exceed $2.5 million if one home were built on a single, one-acre lot. The total development costs of building either one or two homes would be around $2.76 million, however, exceeding the estimated market value.
I. The New Preferred Alternative (NPA) and Addition to the DEIR (ADEIR)
In November 2006, following its further discussions with City staff and representative of the Canyons at Bighorn, and in response to comments on the DEIR, Cornishe submitted a new proposal and TTM to build two large single-family homes on the 11.87-acre parcel. This proposal was named the NPA, and ultimately became the approved project. In March 2008, the City circulated the ADEIR for the NPA and invited comment on the ADEIR.
The ADEIR noted that Cornishe created the NPA in an effort to reduce the environmental impacts of its original 38-unit proposal. Unlike the HLA, the NPA was based on a "specific configuration and preliminary site plan" that was unavailable when the HLA was analyzed in the DEIR. The ADEIR stated that the HLA was "found to be impracticable as the northeastern corner of the site identified for development was largely located within the floodplain of Dead Indian Creek, did not possess sufficient elevation to permit views of the Coachella Valley, and was not large enough to accommodate more than a single lot, all of which circumstances rendered the [HLA] economically infeasible." By contrast to the HLA, which would not meet several key project objectives due to its economic infeasibility, the NPA would meet the project's land use, design, and economic objectives, and would "optimize a balance between" the original project and the HLA.
As discussed in the ADEIR, the NPA proposed constructing two single-story, 10,000-square-foot homes on 1.17- to 1.35-acre lots, each with 23,000 to 25,000 square feet of graded pad area, including garage space. The pads would be elevated to 809 and 820 feet asl in order to provide views of the Coachella Valley. Vehicular access would be through the Indian Cove neighborhood to the Canyons at Bighorn, and would not traverse Dead Indian Creek. The architectural features of the NPA homes would comply with the architectural guidelines for the Canyons at Bighorn development, with the intention of "appear[ing] as a minor extension of the existing community." The NPA homes would be 240 yards from the lambing pen at its closest point, 60 yards closer than the HLA at its closest point. All NPA improvements "would avoid sensitive habitat along Dead Indian Creek."
The ADEIR identified the Institute's PBS as an area of significant impact, and pointed out that concern for these impacts was a significant factor in developing a series of alternatives to the 38-unit proposal, including the HLA and the NPA. The ADEIR revised the design objectives of the project to "[e]nsure adequate separation from the Bighorn Institute lambing pen without encroaching into the floodplain of Dead Indian Creek," and to "raise Lots 1 and 2 to an elevation from which views of the Coachella Valley are readily available." The economic objectives of the project were also revised to "[c]reate high value lots in a high value area of Palm Desert," and "[o]ptimize the value of the site with residential uses consistent with . . . anticipated market demands." J. Comments on the ADEIR
The comments on the ADEIR criticized the NPA for failing to fully mitigate all impacts on the Institute's PBS, and for failing to be built entirely within the 400-yard buffer imposed on the Canyons at Bighorn project. Like the comments on the DEIR, none of the comments on the ADEIR criticized it for failing to adequately analyze the two-unit HLA.
The Institute commented that the HLA "utilizes the only part of [the property] that is outside of a 400 yard 'buffer,'" and criticized the NPA for being 240 yards from the lambing pen and for failing to utilize any part of the parcel outside or north of the 400-yard buffer. The Institute also criticized the ADEIR for "ignor[ing]" the HLA because it was not economically feasible, and noted that when Cornishe purchased the parcel it knew "there were serious building issues associated" with it. Other commentators repeated the Institute's concern that the HLA "utilizes the only part of [the property] that is outside of a 400 yard 'buffer.'" K. The Final Environmental Impact Report (FEIR) and Project Approvals
In September 2008, the FEIR was issued, and included the comments on the DEIR and the ADEIR together with the City's responses to these comments. The FEIR also incorporated nine separate mitigation measures designed to reduce potential impacts on the Institute's PBS. Among other things, the mitigation measures prohibited construction during the spring lambing season, prohibited future owners of the homes from owning dogs, shielded all lighting, and oriented the garages and driveways of the two homes away from the lambing pen.
Like the ADIER, the FEIR concluded that the HLA was impracticable and economically infeasible because its site area was largely located within the floodplain of Dead Indian Creek, did not possess sufficient elevation to permit views of the Coachella Valley, and was not large enough to accommodate more than a single lot. The FEIR further explained that the feasibility of any two-lot alternative depended upon its having large lots with sufficient size and sufficient elevation to permit views of the Coachella Valley, and the HLA met neither of these objectives. Unlike the HLA, the NPA met the project's land use planning, design, and economic objectives, but would require importing around 36,000 cubic feet of raw fill to create two elevated building pads.
Following the issuance of the FEIR, the City planning commission recommended that the City Council certify the FEIR as complying with CEQA and approve the NPA. Before the NPA came before the City Council, Cornishe revised its TTM 31676 for the NPA to comply with the City's hillside ordinance. This reduced the size and altered the location of the two proposed building pads, reducing the amount of grading and imported soil necessary to construct each pad by nearly 20 percent, from around 36,000 cubic yards to approximately 28,500 cubic yards. The revisions also increased to 10.41 acres the portion of the 11.87-acre parcel to be preserved as open space. Part of the lots themselves were to be renaturalized to blend into the adjoining open space.
In February 2009, the City Council approved resolution No. 09-13, certifying the FEIR as complying with CEQA, adopting CEQA findings, the SOC, and a mitigation monitoring and reporting program, and approving Cornishe's TTM for the modified NPA. In its CEQA findings, the City Council "conservatively assumed," and accordingly found, that the project would result in significant and unavoidable biological impacts to PBS through "visual and auditory habitation." The City also found that HLA would reduce these impacts to less than significant levels, but was both economically and environmentally infeasible.
In the SOC, the City discussed in detail why several specific benefits of the project outweighed its potential impacts on PBS and its short-term, construction-phase impacts on air, noise, and traffic. The SOC also states: "These overriding considerations are only stated in an abundance of caution provided there is any impact to the Bighorn Institute facility at all. As documented above, there is no scientific consensus that a buffer of 400 yards, or any other distance, is required. The City . . . is persuaded by those experts who believe that no buffer, or only a small buffer, is necessary to mitigate all effects. [Citations.] Therefore, there are no significant effects that need to be overridden in this sense. However, to the extent that unanticipated impacts may occur, and recognizing the permanence of the [p]roject once it is established, the City Council . . . sets forth the above rationale for proceeding with the [p]roject in view of the slight potential for these impacts."
L. The Present Writ Petition and Complaint
Appellants filed the present action in March 2009. On March 26, 2010, the trial court heard oral argument on appellants' first and third causes of action for a writ of administrative mandate and declaratory relief, respectively, against respondents. The court denied appellants' claims and entered judgment in favor of respondents.
The record does not contain a transcript of the March 26, 2010, hearing.
In an order explaining its ruling, the court concluded that the City had properly certified the EIR as complying with CEQA, and that substantial evidence supported its finding that strict compliance with the 400-yard buffer was unnecessary to reduce the project's impacts on the Institute's PBS and captive breeding program. The court specifically found that the HLA "was adequately analyzed" and substantial evidence supported the City's finding that it was economically infeasible.
III. DISCUSSION
A. Standard of Review
"In reviewing a writ petition challenging the legality of a lead agency's actions under CEQA, our role is the same as the trial court's. We review the agency's actions, not the trial court's decision, and we apply the same standards of review the trial court applied. [Citation.] Our inquiry is limited to whether (1) substantial evidence supports the agency's factual determinations, and (2) the agency proceeded in the manner required by law. [Citations.] The agency abuses its discretion in certifying an EIR as complying with the requirements of CEQA if substantial evidence does not support the agency's factual determinations or if the agency has not proceeded in a manner required by law. [Citations.]" (Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 326-327 [Fourth Dist., Div. Two].)
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 Regs., tit. 14, § 15384, subd. (a) (the Guidelines).) "Argument, speculation, unsubstantiated opinion or narrative, [or] evidence which is clearly erroneous or inaccurate . . . does not constitute substantial evidence." (Guidelines, § 15384, subd. (a).) By contrast, questions concerning the proper interpretation of application of the requirements of CEQA are matters of law. (See Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118.) When the informational requirements of CEQA are not met but the agency nevertheless certifies the EIR as meeting them, the agency fails to proceed in a manner required by law and abuses its discretion. (Id. at pp. 117-118.)
All references to the Guidelines are to the state CEQA guidelines. (Guidelines, § 15000 et seq.) The Guidelines are binding on all public agencies in California in implementing the provisions of CEQA. (Guidelines, §§ 15000-15001.)
The EIR is presumed legally adequate (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740), and the agency's certification of the EIR is presumed correct (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530). Persons challenging the EIR therefore bear the burden of proving it is legally inadequate. (Ibid.; Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, at p. 740.)
"An EIR is an 'environmental "alarm bell" whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.' [Citations.] The EIR is also intended 'to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.' [Citations.] Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.]" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights).)
"'[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA.' [Citation.] The error is prejudicial 'if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.' [Citation.]" (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721-722.) "In other words, when an agency fails to proceed as required by CEQA, harmless error analysis is inapplicable. . . . [I]n such cases, the error is prejudicial. [Citations.]" (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946.)
We do not "pass upon the correctness" of the EIR's environmental conclusions, but only its sufficiency as an informative document. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) "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." (Ibid.) B. Appellants Exhausted Their Administrative Remedies and Preserved Their Claims for Appeal Concerning the HLA and the SOC
Before we address the merits of appellants' claims, we address respondents' claim that appellants are barred from raising several claims or specific arguments concerning the HLA and the SOC—both because appellants failed to raise them in the trial court and, more fundamentally, because no one, including appellants, raised them at any time during the environmental review process or the proceedings before the City.
We conclude that appellants' claims on appeal concerning the HLA and the SOC were effectively raised during the administrative proceedings before the City. Appellants therefore exhausted their administrative remedies and are not barred from raising these claims in court. Further, to the extent any claims or arguments raised on this appeal were not specifically raised in the trial court, they present issues of law which this court can determine based on the administrative record.
We first discuss respondents' claim that appellants failed to preserve several issues for appeal by failing to raise them in the trial court. We then address respondents' more fundamental and jurisdictional claim that appellants failed to exhaust administrative remedies.
1. Preservation of Issues for Appeal
As a general rule, issues not raised in the trial court cannot be raised on appeal, but this rule does not apply to "pure question[s] of law" that may be determined based on undisputed facts. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) An appellate court has discretion to consider such issues because they are "readily correctable on appeal" despite the failure to raise them in the trial court. (See, e.g., Francies v. Kapla (2005) 127 Cal.App.4th 1381, 1386.)
In the trial court, appellants claimed, among other things, that the EIR failed to adequately analyze the HLA and include sufficient information to consider its feasibility; the City's findings rejecting the HLA as infeasible were not based on substantial evidence but were instead based on this "lack of information" and the "wrong alternative," namely, an alternative that lay completely outside the 400-yard buffer. Appellants also claimed the SOC's finding that "equitable considerations" for approving the project outweighed its potential adverse impacts on PBS relied on an inadequate EIR and the "erroneous assumption" that the only feasible alternative lay entirely outside the buffer.
As respondents point out, appellants did not specifically claim, as they do on this appeal, that Cornishe misinformed the City concerning the HLA or that this misinformation confused the City and precluded informed consideration of the HLA by the City and the public. Instead, they argued that the FEIR did not include sufficient information about the HLA to meaningfully analyze it, and this lack of information confused the City and caused it to confuse the public concerning the nature of the HLA and its feasibility. Appellants also did not challenge the sufficiency of the evidence supporting the City's findings that the HLA did not meet the project's land use, design, or resource conservation objectives. Nor did appellants challenge the sufficiency of the evidence supporting the City's determination in the SOC that the City's overall planning considerations and the specific benefits of the project outweighed its presumed or potential effects on PBS.
Despite these differences between the specific claims or arguments appellants raised in the trial court and now raise on this appeal, we exercise our discretion to consider each of the claims raised on appeal. As will appear, the merits of each claim can be considered and determined based on the evidence in the administrative record—the same record that was before the trial court.
As we next explain, appellants' HLA- and SOC-related claims on appeal were effectively raised during the administrative proceedings before the City. Thus, the City had an opportunity to respond to the claims before it approved the project.
2. Exhaustion of Administrative Remedies
Exhaustion of administrative remedies is a jurisdictional prerequisite to a petitioner's maintenance of a CEQA action in the trial or appellate courts. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199; see also Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293.) Section 21177 provides that a petitioner cannot assert a CEQA violation against a lead agency in court unless someone—not necessarily the petitioner—asserted the violation during the comment period on the EIR or before the close of the public hearing on the project and before the issuance of the notice of determination. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 792; § 21177, subd. (a).) Additionally, the petitioner itself must have raised "some objection" to the project before the notice of determination was issued. (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 711; § 21177, subd. (b).)
The purpose of the exhaustion doctrine is to allow the agency "'the opportunity to decide matters in its area of expertise prior to judicial review. [Citation.] The [agency] "'is entitled to learn the contentions of interested parties before litigation is instituted.'"' [Citation.]" (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 616.) This way, the agency may "'respond to articulated factual issues and legal theories before its actions are subjected to judicial review.' [Citation.]" (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447.)
Still, interested parties are not held to a strict standard of precision in expressing the legal or factual basis of their objections. On the one hand, "[t]o exhaust administrative remedies, '[m]ore is obviously required' than 'generalized environmental comments at public hearings.' [Citation.] 'On the other hand, less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding. This is because "'[i]n administrative proceedings, [parties] generally are not represented by counsel. To hold such parties to knowledge of the technical rules of evidence and to the penalty of waiver for failure to make a timely and specific objection would be unfair to them.' [Citation.] It is no hardship, however, to require a layman to make known what facts are contested."' [Citation.]" (California Native Plant Society v. City of Rancho Cordova, supra, 172 Cal.App.4th at p. 616.)
Respondents argue that no one, including appellants, ever complained to the City that Cornishe misinformed the City about the HLA. Indeed, the record shows that no one raised this specific argument to the City. Nor did anyone challenge the City's determination in the SOC, a draft version of which was circulated several months before it was adopted (cf. Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at p. 720), that the overall planning considerations and the specific benefits of the project outweighed its potential impacts on PBS.
As appellants point out, however, the Cornishe letter was not available to the public until after the notice of determination was issued. Thus, no one could have challenged the Cornishe letter's information concerning the HLA, including its estimates of the costs of developing the HLA or its market value, at any time during the comments period on the ADEIR or the subsequent proceedings before the City. Additionally, appellants raised legal and factual challenges to both the HLA and the SOC in a September 15, 2008, letter to the City planning commission, written after the FEIR was issued and one day before the planning commission considered the project. These challenges were sufficient to exhaust appellants' administrative remedies.
In the letter, counsel for appellants pointed out that the EIR failed to adequately analyze the HLA, and there was insufficient evidence that the HLA was infeasible. The letter stated: "There is no evidence that the [HLA] is infeasible. The City's proposed finding that this alternative is impractical and infeasible is conclusory, and is not supported by substantial evidence. The [HLA] was not analyzed in enough detail to document these conclusions. The fact that the alternative may need a U.S. Army Corps of Engineers permit is not evidence of infeasibility. Certainly, such a project may be less desirable, given that the down valley views may be reduced, but that is not evidence of infeasibility. . . ." Regarding the SOC, the letter stated: "The Statement of Overriding considerations seems to suggest that the whole problem is the fault of the Bighorn Institute for locating the lambing pens in the current location. . . . In other words, the Institute should have known that the City would be willing to approve development without appropriate mitigation in violation of State Law. . . ."
In sum, the letter informed the City that, at least in appellants' view, the EIR did not adequately analyze the HLA and insufficient evidence showed it was economically infeasible. The letter thus afforded the City an opportunity to address appellants' concerns before appellants filed the present writ petition challenging the legal adequacy of the EIR on these grounds. (Park Area Neighbors v. Town of Fairfax, supra, 29 Cal.App.4th at p. 1447.)
By contrast to the letter's complaints concerning the EIR's analysis of the HLA, the letter's complaints concerning the SOC were more general, and did not directly challenge the evidence supporting its overall planning considerations or specific project benefit considerations. Nevertheless, the letter apprised the City that its overriding reasons for approving the project did not adequately account for the importance of maintaining the 400-yard buffer or protecting the Institute's PBS. Accordingly, the concerns expressed in the letter implicated the City's determination in the SOC that the specific benefits of the project and the City's overall planning considerations— specifically, the City's need to balance environmental quality objectives, fiscal objectives, and land use patterns—outweighed the potential impacts of the project on the Institute's PBS, and were sufficient to exhaust appellants' administrative remedies concerning the SOC.
Lastly, we note that in their reply brief appellants argue that respondents have waived their exhaustion of administrative remedies defense because they failed to raise it in the trial court. Appellants rely on Cummings v. Stanley (2009) 177 Cal.App.4th 493, where Division One of this court recognized there is a split of authority on the question of whether an exhaustion of remedies defense is waived by the failure to timely assert it at trial. (Id. at p. 506.) In concluding that the exhaustion defense was waived because it was not raised in the trial court, the Cummings court chose "to follow the influential trend of recent authority that exhaustion does not implicate subject matter jurisdiction, but rather is a judicially created rule of procedure, with numerous exceptions, which must be applied by the courts equitably and depends on a qualitative analysis on a case-by-case basis of the facts presented at trial." (Ibid., fn. omitted.)
Cummings was not a CEQA case and did not apply section 21177. (Cummings v. Stanley, supra, 177 Cal.App.4th at pp. 499, 505-506.) But even if the exhaustion defense is an equitable rule of procedure that does not implicate the subject matter jurisdiction of the courts, as Cummings concluded, and even if respondents did not, for equitable reasons, forfeit or fail to preserve the exhaustion defense on appeal, the defense does not apply here because appellants sufficiently raised and exhausted their claims at the administrative level—that is, during the administrative proceedings before the City. C. The EIR Adequately Analyzed the Two-home HLA and Did Not Confuse It With an "Outside the Buffer" Alternative, and the EIR Was Not Required to Consider a One-home Version of the HLA in the HLA Site Area
Appellants claim the EIR was inadequate principally because the two-home HLA, originally discussed in the DEIR and proposed by the City, became confused in the ADEIR with another potential version of the HLA—one that would have required construction within Dead Indian Creek. Then, during the comment period on the ADEIR, appellants claim that the original two-home HLA became confused with yet another potential version of the HLA—one that would have been built entirely outside the 400-yard buffer (an "outside the buffer" alternative).
Appellants argue that all of this confusion originated with the Cornishe letter, and that the confusion in the EIR ultimately precluded informed public review and decisionmaking concerning the economic feasibility of the original two-home HLA discussed in the DEIR. Appellants further maintain that the EIR failed to consider a reasonable range of alternatives because it did not specifically consider a one-home version of the HLA, to be located in the 1.1-acre portion of the HLA site area that lay outside of Dead Indian Creek and partially within the 400-yard buffer.
As we explain, the record does not support these claims. Neither the Cornishe letter nor the EIR misrepresented the HLA or confused it with a one-home version of the HLA or a beyond the buffer alternative. To the contrary, the original two-home HLA was adequately considered in the EIR and was not confused with other alternatives. Substantial evidence also shows that the HLA and any one-home version of it were economically infeasible—whether located partially within the 400-yard buffer on the 1.1 acre site, or entirely outside the 400-yard buffer and within Dead Indian Creek. Thus the EIR was not required to analyze any one-home version of the HLA.
1. Applicable Legal Principles
"CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts." (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163.) "The range of potential alternatives . . . shall include those that could feasibly accomplish most of the basic objectives of the project and could avoid or substantially lessen one or more of the significant effects." (Guidelines, § 15126.6, subd. (c); Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1354 (Preservation Action Council).)
"The EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. . . ." (Guidelines, § 15126.6, subd. (d).) The discussion of alternatives need not be exhaustive, however, and is subject to the doctrine of feasibility and a rule of reason. (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 921-922 [CEQA "'does not demand what is not realistically possible, given the limitation of time, energy and funds.'"].) "'Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (Guidelines, § 15364.) "[E]conomic viability" is one of the factors that may be taken into account in addressing the feasibility of an alternative. (Id., § 15126.6, subd. (f)(1).)
"A local agency must make an initial determination as to which alternatives are feasible and which are not. [Citation.] If an alternative is identified as at least potentially feasible, an in-depth discussion is required. [Citation.] On the other hand, when the infeasibility of an alternative is readily apparent, it 'need not be extensively considered.' [Citation.] [¶] Even as to alternatives that are rejected . . . the 'EIR must explain why each suggested alternative either does not satisfy the goals of the proposed project, does not offer substantial environmental advantages[,] or cannot be accomplished.' [Citations.] The explanation must be sufficient to enable meaningful public participation and criticism. [Citation.]" (Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1457 [Fourth Dist., Div. Two] (Save Round Valley).)
"'"The key issue is whether the selection and discussion of alternatives [in the EIR] fosters informed decisionmaking and informed public participation." [Citation.]'" (Laurel Heights, supra, 47 Cal.3d at p. 404.) The EIR must also disclose "'the "analytic route the . . . agency traveled from evidence to action"'" in independently considering and rejecting potential alternatives. (Ibid.; Save Round Valley, supra, 157 Cal.App.4th at p. 1458.) "The agency may not simply accept at face value the project proponent's assertions regarding feasibility." (Save Round Valley, supra, at p. 1458.)
2. The Cornishe Letter Did Not Misrepresent the HLA
Appellants claim the Cornishe letter is the source of all of the confusion in the EIR concerning the HLA. They specifically argue that the Cornishe letter changed, confused, and misrepresented "fundamental elements" of the two-home HLA as originally described in the DEIR, and that the City carried this confusion into the ADEIR and the FEIR, causing the original HLA to become confused—initially with a version of the two-home HLA to be built partly within Dead Indian Creek and ultimately with an "outside the buffer" alternative to be built entirely within Dead Indian Creek. The record shows there was no such confusion.
First, appellants argue that the Cornishe letter "falsely claimed" that the HLA "would require substantial fill within Dead Indian Creek." This was not a false claim. Appellants' argument simply misreads the contents of the Cornishe letter. As discussed, the HLA as described in the DEIR envisioned building two large homes, each excavated into the hillside and with 10,000 square feet of usable interior space, on 0.75- to 1.5-acre lots in the far "northeast corner" of the 11.87-acre parcel, 300 yards from the lambing pen. Following the close of the public comment period on the DEIR and Cornishe's submission of its new, four-unit proposal, the City further investigated the HLA, which the City, not Cornishe, had originally proposed, and asked Cornishe to provide it with estimates of the total development cost and market value of the two-home HLA. In response, counsel for Cornishe claimed in the Cornishe letter that the HLA was impracticable and economically infeasible.
The Cornishe letter pointed out that the "approximate location" of the HLA, as shown on the map on page 261 of the DEIR, would not accommodate two 0.75- to 1.5-acre lots unless the lots were built partly within Dead Indian Creek. But if no part of the lots were built within Dead Indian Creek, the HLA site area was only large enough to accommodate a single 1.1-acre lot or two half-acre lots. The Cornishe letter supported these lot-size estimates with detailed measurements showing that approximately 40,100 square feet of HLA's total site area of 93,625 square feet lay within the floodplain of Dead Indian Creek. Appellants do not dispute the accuracy of the Cornishe letter's site-area measurements, and nothing in the administrative record contradicts them. Indeed, appellants admit that "[t]he undisputed evidence in the [r]ecord demonstrates that there is over one acre of developable area within the [HLA] development zone that is above Dead Indian Creek."
Thus, contrary to appellants' argument, the Cornishe letter did not "falsely claim" that the HLA would require substantial fill within Dead Indian Creek. Instead, the letter accurately informed the City that building the two 0.75- to 1.5-acre lots in the HLA site area would require building part of the lots within Dead Indian Creek, but the 1.1-acre portion of the site area outside of the creek could have accommodated one or two smaller lots with no part of the lots being built within the creek.
Appellants also claim that the Cornishe letter misrepresented the HLA because, unlike the HLA described in the DEIR, "the design [for the HLA] identified in the Cornishe letter did not provide for low profile buildings that were excavated into the hillside. It provided for substantial fill to create large building pads." This argument also misreads the Cornishe letter. The letter did not claim that the HLA home or homes could not be excavated into the hillside. In fact, the letter said nothing about whether the homes could be excavated into the hillside. Instead, the letter explained that building two 0.75-to 1.5-acre lots in the HLA site area would require building part of the lots—but not necessarily the homes—within the floodplain of Dead Indian Creek.
Lastly, appellants argue that the Cornishe letter "claimed inadequate views based upon the false assumption that development of the [HLA] would be down near Dead Indian Creek . . . but fail[ed] to provide any evidence of views that could be obtained from that location. Instead, the Cornishe letter merely assert[ed] that [the HLA] would be at 'the lowest part of the property' and that 'views from the property at that elevation would be significantly diminished. . . .' This misinformation, and lack of information, was interpreted in environmental documents that followed to mean that views from the [HLA] would be those obtained from development down in Dead Indian Creek."
Contrary to this argument, the Cornishe letter accurately described the views and the elevation of the views available from the HLA site area. The letter accurately stated that the "approximate location" of the HLA was at "the lowest part of the [p]roperty, with an average elevation of approximately 790 feet." Indeed, a diagram on page 263 of the DEIR (figure 30) shows that the two HLA homes would have been built on lots ranging in elevation from 790 to 805 feet asl, and from 797 to 812 feet asl. Accordingly, if the two HLA homes were excavated into the hillside, as the DEIR envisioned, then the homes would have had views from no higher than around 800 feet asl. By contrast, the NPA homes were to be built on elevated pads at elevations of 809 and 820 feet asl, respectively, similar to the elevations of the lots in the nearby Indian Cove neighborhood of the Canyons at Bighorn.
The ADEIR included photographs from the 11.87-acre parcel at varying elevations, and showed that the views from the property were significantly more desirable at elevations exceeding 800 feet. Photograph 1 was taken from the lowest portion of the parcel, at approximately 785 feet asl, where the garages for the two NPA homes were to be located. Views of the Coachella Valley from this point were practically nonexistent. Photograph 2 was taken at 800 feet asl, and shows views of the Coachella Valley and part of the golf course at the Canyons at Bighorn. Photograph 3, taken at 810 feet asl, shows markedly better views of the Coachella Valley and the golf course than photograph 2, and also shows views of homes to the west of the property and Dead Indian Creek, not shown in photograph 2.
The photographs in the ADEIR and the elevation measurements of the HLA lots in the DEIR supported the Cornishe letter's claim that the views from the HLA site area would have been "significantly diminished" in comparison to the views from the property at 809 and 820 feet asl, the elevations of the proposed NPA lots.
As additional support for its claim that the HLA was economically infeasible, the Cornishe letter provided estimates of the total development costs and market value of the HLA. The letter stated that the total costs of building one lot on the 1.1-acre portion of the HLA site outside or above Dead Indian Creek would have been approximately $2.76 million, consisting of the price Cornishe paid for the 11.87-acre parcel ($673,200), predevelopment costs and interest (approximately $1.22 million), and site preparation and development costs (approximately $866,540). The Cornishe letter also pointed out that building the two larger lots partly within Dead Indian Creek, would have been "extremely expensive, far exceeding the potential value that could be derived from increasing the developable size of the [p]roperty."
The Cornishe letter estimated that the market value of one home on the 1.1-acre plateau would have been no more than $2.5 million, and two smaller homes on half-acre lots would have been worth no more than $1 million each, "[d]ue to the constraints on the size, location, and elevation of the proposed site, and the limitations on the location of vehicular access and recreational facilities . . . ." The Cornishe letter concluded that "[d]evelopment of the proposed [HLA] would therefore not be economically viable because the market value of the resulting lots would be less than the associated development costs," and stressed that the views from the elevations in the HLA site area or plateau above Dead Indian Creek were insufficient to permit the construction of higher value homes. Finally, the Cornishe letter claimed that a regulatory taking would result if the City restricted development of the property to the HLA.
3. The EIR Did Not Misrepresent the Two-home HLA or Confuse It With Other Alternatives, and Adequately Analyzed the Two-home HLA
The ADEIR was circulated in March 2008, two years after the City received the Cornishe letter. The ADEIR explained that "[w]hile a two-unit alternative, (the [HLA]) was evaluated in the [DEIR], the [NPA] now provides specific configuration and preliminary site plan that was heretofore and at the time of preparation of the [DEIR] unavailable. Furthermore, the [HLA] analyzed in the [DEIR] was found to be impracticable as the northeastern corner of the site identified for development was largely located within the floodplain of Dead Indian Creek, did not possess sufficient elevation to permit views of the Coachella Valley, and was not large enough to accommodate more than a single lot, all of which circumstances rendered the [HLA] economically infeasible."
Though the Cornishe letter supported the ADEIR's conclusion that the two-home HLA was impracticable and economically infeasible, the ADEIR did not mention the Cornishe letter, and the Cornishe letter was not made available to the public until after the modified NPA was approved. Nor did the ADEIR specifically explain what the Cornishe letter explained—that the HLA site area was large enough to accommodate a single 1.1-acre lot or two half-acre lots if no part of the lots were built within Dead Indian Creek, or if the two-home HLA were built as envisioned in the DEIR, then its larger-size lots would have to have been built partly within Dead Indian Creek. Still, the ADEIR adequately explained why the original HLA as discussed in the DEIR was both impracticable and economically infeasible.
Instead of providing a detailed explanation of why the two-home HLA was impracticable, with, for example, the site-area measurements and other supporting evidence provided in the Cornishe letter, the ADEIR summarily explained that the two-home HLA was impracticable because the northeast corner of the parcel identified as its approximate site area was "largely" located within Dead Indian Creek, and the portion of the HLA site area that lay outside of the creek was only large enough to accommodate a single lot. This was a correct description of the HLA following the City's further investigation of it, and it did not mischaracterize any of its elements.
Most significantly, the ADEIR's description of the HLA was sufficient to foster informed review and decisionmaking concerning the ADEIR's conclusion that the two-home HLA was impracticable, or could not be built as originally envisioned. Anyone reading the ADEIR would have reasonably understood that the City had, upon further investigation, discovered that the original HLA as discussed in the DEIR could not feasibly be built—specifically, two homes on 0.75- to 1.5-acre lots could not be built in the HLA site area entirely outside of Dead Indian Creek. The EIR thus revealed the "analytical route" that the City traveled "from evidence to action" in determining that the original two-home HLA was impracticable. (Laurel Heights, supra, 47 Cal.3d at p. 404; Save Round Valley, supra, 157 Cal.App.4th at p. 1458.)
The ADEIR also adequately explained that the HLA was economically infeasible for a combination of three reasons: it was located largely within Dead Indian Creek; it was only large enough to accommodate a single lot; and it was not high enough in elevation to permit views of the Coachella Valley. Consistent with this conclusion, the ADEIR modified the design objectives of the project to "raise Lots 1 and 2 to an elevation from which views of the Coachella Valley are readily available," and modified the economic objectives of the project to "create high value lots in a high value area of Palm Desert." The Cornishe letter's estimates of the HLA's development cost and market values, its measurements of the HLA site area, the view photographs in the ADEIR, and the elevations of the proposed HLA lots as shown in the DEIR, all constitute substantial evidence supporting this conclusion.
Additionally, no further explanation or evidence supporting this conclusion— including, for example the Cornishe letter's development cost and market value estimates of the two-home HLA—was necessary to foster informed review and decisionmaking concerning the economic infeasibility of the two-home HLA. Indeed, from reading the DEIR and the ADEIR, the public and decision makers should have reasonably understood that the HLA was economically infeasible because its developable area both was too small and too low in elevation to create homes of sufficient value to cover their costs. And if any member of the public disagreed with that conclusion, he or she was free to discover contrary evidence and submit that evidence to the City.
We also disagree with appellants' claim that the ADEIR misrepresented the two-home HLA such that it became confused with another potential version of the HLA that would have required construction partly within Dead Indian Creek. In explaining that the two-home HLA was found to be impracticable because its site area was "largely located within the floodplain of Dead Indian Creek" and was only large enough to accommodate a single lot, the ADEIR simply assumed, without specifically pointing out, that no part of the HLA would be built within Dead Indian Creek. This assumption was consistent with the DEIR's description of the HLA, which stipulated that the HLA would "avoid sensitive habitat along Dead Indian Creek." No further explanation was required to foster informed review and decisionmaking. The public should have reasonably understood from reading the DEIR and the ADEIR that no part of the two-home HLA was to be built within Dead Indian Creek. Here, too, the EIR sufficiently disclosed the route the City traveled from evidence to action in determining that the two-home HLA was economically infeasible.
4. The HLA Was Not Confused With an Outside the Buffer Alternative in the Comments on the ADEIR or in the City's Responses to Those Comments
Appellants further claim that the original two-home HLA became confused with the outside the buffer alternative—a single home built on the 9,900-square-foot portion of the 11.87-acre parcel that lay entirely outside the 400-yard buffer—in the comments on the ADEIR and in the City's responses to those comments. The record reveals no such confusion.
Many of the comments on the ADEIR asserted that the NPA would significantly and adversely impact the Institute's PBS because it would be built 240 yards from the lambing pen or 160 yards within the 400-yard buffer. Accordingly, many commentators criticized the ADEIR for failing to consider an alternative that lay entirely outside the buffer, and in this regard pointed out that the HLA "utilize[d] the only part" of the parcel that lay outside the 400-yard buffer.
Contrary to appellants' argument, however, none of the comments on the ADEIR indicated a misunderstanding on the part of the commentators that the entire HLA site area lay entirely outside of the 400-yard buffer. Instead, the comments acknowledged that, unlike the NPA, the HLA utilized "the only part of" or "the part of" the 11.87-acre parcel that lay entirely outside the 400-yard buffer.
Given the DEIR's description of the HLA as being located 300 yards from the lambing pen, none of the commentators on the ADEIR could have reasonably confused the entire HLA site area with the portion of the HLA site area that lay entirely outside the 400-yard buffer. Indeed, the HLA apparently had few adherents because it would have been built 300 yards from the lambing pen and within the 400-yard buffer.
Nor did the City cause or perpetuate any confusion concerning the location of the HLA in its responses to the comments on the ADEIR. To the contrary, in one of its responses, the City noted that the HLA site area did not lie entirely outside of the 400-yard buffer. Nor did the City confuse or conflate the HLA with an outside the buffer alternative. To the contrary, the City specifically distinguished the HLA with an outside the buffer alternative. In one of its responses, the City wrote: "This comment's suggestion that the City consider an alternative of one single-family dwelling to be located in the northeast corner of the project site as close to the 400-yard buffer zone around the lambing pen is acknowledged . . . It is observed that this concept is comparable in logic to the [HLA] consisting of two single-family dwellings that was included in the [DEIR] . . . ." In another response, the City stated it was unclear whether an outside the buffer alternative "would have less impact than the [HLA] . . . that was evaluated in the [DEIR].
Thus, in responding to the specific comments that the HLA utilized the only part of the 11.87-acre parcel that lay entirely outside of the 400-yard buffer, the City reiterated the ADEIR's explanation of the reasons why the HLA was both impracticable and economically infeasible—the HLA was "impracticable as it would largely develop within the floodplains of Dead Indian Creek, was not large enough to accommodate more than a single lot, and does not possess sufficient elevation to permit views of the Coachella Valley. Furthermore, the [HLA] would not have met the project's Land Use Planning, Design, and Economic objectives. Thus it was rendered infeasible." In sum, anyone reading the comments on the ADEIR and the City's responses to those comments would not have confused the HLA site area with the area outside the buffer. Nor would they have reasonably confused the one- or two-unit HLA with a one-unit outside the buffer alternative.
Like the ADEIR, the FEIR concluded that the two-home HLA was impracticable and economically infeasible because its site area was largely located within the floodplain of Dead Indian Creek, was not large enough to accommodate more than a single lot, and did not possess sufficient elevation to permit views of the Coachella Valley. The FEIR expressly articulated what the ADEIR effectively explained—that the economic feasibility of any two-lot alternative depended upon its having lots with sufficient size and elevation to permit views of the Coachella Valley, and the HLA met neither of these objectives. The FEIR thus accurately summarized and explained that the HLA was both impracticable and economically infeasible.
5. Substantial Evidence Showed the HLA Was Economically Infeasible
Contrary to appellants' further argument, the Cornishe letter's estimates of the total development costs and market value of the HLA constitute substantial evidence upon which the City reasonably relied in concluding that the two-home HLA was economically infeasible. 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." (Guidelines, § 15384, subd. (a).) By contrast, "unsubstantiated opinion . . . does not constitute substantial evidence." (Ibid., italics added.)
Though, as appellants point out, it is not apparent from the record or the Cornishe letter itself that counsel for Cornishe was competent to testify in court concerning the total development costs or the market value of the HLA, for purposes of CEQA substantial evidence is not required to be admissible in a court of law. We also disagree that counsel's cost and market value estimates constitute unsubstantiated opinions. The total cost estimate was specific and detailed, and it was reasonable for the City to rely on it. The market value estimates were also reasonable. (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1502-1503 [lead agency may rely on substantial evidence in the administrative record, not necessarily in the EIR itself, in determining that project alternatives are economically infeasible].)
Notably, the Cornishe letter's estimates of the market value of the two-home and single-home versions of the HLA, if built on the 1.1-acre portion of the HLA site area above Dead Indian Creek, were subsequently supported by a $2 million estimate of the market value of a comparable 3,500-square-foot home built on the 9,900-square-foot portion of the property lying entirely outside the 400-yard buffer and in the lower elevations within Dead Indian Creek. Cornishe submitted this estimate to the City in November 2008, following the issuance of the FEIR. The estimate was set forth in a November 15, 2008 letter to Cornishe by Carl Cardinalli, the vice president of development and director of sales for the developer of the Canyons at Bighorn project.
6. The EIR Was Not Required to Specifically Consider a One-home Alternative on the 1.1-acre Portion of the HLA Site Area
Appellants claim the EIR failed to consider a reasonable range of alternatives to the project because it "did not consider the feasibility of building one home in the elevated, one acre portion of the [HLA] zone or some other similar deviation from the buffer . . . ." We disagree.
As discussed, the City concluded in the ADEIR, and substantial evidence shows, that a one-home alternative on the 1.1-acre portion of the HLA site area would have been economically infeasible. As explained in the Cornishe letter, the total development costs of building one home on the 1.1 acre would have been approximately $2.76 million, but the home would have been worth no more than $2.5 million. Additionally, the views from the home would not have permitted views of the Coachella Valley. Thus the single home alternative would not have been sufficiently valuable to cover its costs.
Because substantial evidence showed that any one-home alternative anywhere in the HLA site area was economically infeasible, the City was not required to consider it in the EIR. "An EIR need not consider every conceivable alternative to a project. Rather, it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. An EIR is not required to consider alternatives which are infeasible." (Guidelines, § 15126.6, subd. (a); Sierra Club v. City of Orange, supra, 163 Cal.App.4th at pp. 545-546.) D. The City's CEQA Findings Rejecting the Two-home HLA Are Not Based on the " Outside the Buffer Alternative" and Are Supported by Substantial Evidence
In adopting resolution No. 09-13, the City certified the FEIR as fully complying with CEQA and the Guidelines, and found as part of its CEQA findings that the HLA did not meet several project objectives and was economically infeasible. Specifically, the City found that the HLA would not satisfy the project's land use planning objectives, design, or resource conservation objectives because it would require development within Dead Indian Creek, and the two-home HLA was economically infeasible because its construction costs would exceed its "residual land value," and it would not meet the project's economic objective of "maximizing the site's value."
More specifically, the City found the HLA would not satisfy the project's land use planning objectives because it "would not achieve clustering that maintains scenic views and avoids sensitive ecological areas because it would place development within the floodplain of Dead Indian Creek. For the same reasons, this alternative would fail the design objective of creating a project that complements the desert landscape. Similarly, by placing development within a floodplain, this alternative would fail the resource conservation objectives of protecting and minimizing impacts to natural resources."
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Appellants argue that the City's findings in resolution No. 09-13 that the HLA was economically infeasible and did not satisfy several key project objectives were not based on the HLA, but were instead based on a one-home outside the buffer alternative on the 9,900-square-foot area outside of the 400-yard buffer and within Dead Indian Creek. The record does not support this claim. Instead, the record shows that the City's findings rejecting the HLA were based on the original two-home HLA, which, as the Cornishe letter indicated, would have required construction partly within Dead Indian Creek, and were not based on a one-home outside the buffer alternative. Substantial evidence also supports the City's findings rejecting the HLA.
In support of their argument that the findings rejecting the HLA were based on the wrong alternative, appellants point to the SOC, which is contained in section IV of the City's CEQA findings. By contrast, the City's findings rejecting the HLA is contained in section III of the CEQA findings.
In the SOC, the City concluded, in part, that "economic considerations" outweighed the project's potential impacts on PBS. This portion of the SOC explains, with detailed cost estimates, that building the project on the "9,900 square feet" or "slightly less than 1/4 acre" area of the parcel that lay entirely outside the 400-yard buffer would be economically infeasible. The total development costs of building a project entirely outside the buffer and within Dead Indian Creek would be approximately $4,242,425, far exceeding its maximum $2.5 million market value. By contrast, the same discussion states that the proposed project—the NPA—would have a market value of approximately $7 million and would be economically feasible.
The two-home HLA is nowhere mentioned in the SOC's discussion of economic considerations. Instead, the HLA is discussed in section III.A. of the City's CEQA findings. Section III is titled "Findings Regarding Project Alternatives." In this section, the CEQA findings describe each of the project alternatives discussed in the DEIR, including the no project alternative, the (eight-unit) reduced project alternative, the two-home HLA, and the NPA discussed in the ADEIR. The two-home HLA is discussed in section III.C.
The HLA is accurately described in section III.C. as being located "in the extreme northeastern portion of the [p]roject site, at a distance of approximately 300 yards from the closest point of the lambing pen." Thus, the HLA was described as not lying outside the 400-yard buffer. The description also notes that "[t]he northeastern corner of the site identified for development [of the HLA] is largely located within the floodplain of Dead Indian Creek," and "[t]he portion of the site that does not lie within the floodplain of Dead Indian Creek is not large enough to accommodate more than a single lot. . . ." (Italics added.) The description then points out that "[s]ignificant grading would, therefore, be required to raise the building site above the floodplain of the [c]reek in order to meet the objectives of the [p]roject. Such grading would disturb riparian habitat and permanently alter existing drainage patterns within the [c]reek. The [City] finds that these are unacceptable biological and hydrological impacts." (Italics added.)
In the following paragraph, the findings rejecting the HLA explain that the HLA would not achieve many of the project objectives, including its land use planning, design, and resource conservation objectives. The findings then state: "Additionally, and as explained in greater detail below, the cost to construct the [HLA] would be higher than the expected residual land value. Thus, because this alternative would result in a negative economic value, it is economically infeasible. As a result, this alternative would fail to satisfy the [p]roject's economic objective of maximizing the site's value." (Italics added.)
Respondents argue that the phrase, "as explained in greater detail below," refers to the discussion of the economic infeasibility of the outside the buffer alternative discussed in the SOC. Not so. The SOC's discussion of the economic infeasibility of the outside the buffer alternative in section IV of the CEQA findings nowhere mentions the HLA. And, as described in section III.A. of the CEQA findings, the HLA could not reasonably have been confused with the outside the buffer alternative discussed in section IV. There simply is no "explanation in greater detail below," or anywhere else in the CEQA findings, of the economic infeasibility of the HLA. Apparently, the explanation was omitted from the CEQA findings.
At most, it may be argued that the findings rejecting the HLA somewhat conflated the HLA with the outside the buffer alternative by finding that the two-home HLA would require construction within Dead Indian Creek. As noted, however, the findings explained that the HLA "is largely located within the floodplain of Dead Indian Creek," and "[t]he portion of the site that does not lie within the floodplain of Dead Indian Creek is not large enough to accommodate more than a single lot. . . ." (Italics added.) "Significant grading would, therefore, be required to raise the building site above the floodplain of the [c]reek in order to meet the objective of the [p]roject." (Italics added.) This plainly indicated that building the two-home HLA on the two large lots as envisioned in the DEIR would have required building part of the lots within Dead Indian Creek. This was true, and the ADEIR's and the FEIR's explanations of why the original HLA was economically infeasible were consistent with this explanation.
Appellants rely on Preservation Action Council to support their claim that the findings rejecting the HLA were based on the wrong alternative. (Preservation Action Council, supra, 141 Cal.App.4th 1336.) Preservation Action Council is distinguishable on its facts. The EIR considered a project to build a 162,000-square-foot hardware store, which would have required demolishing a historic building built during the 1950's. A reduced-size alternative, namely, a smaller-scale hardware store, would have allowed the historic building to remain. (Id. at pp. 1341-1342.) The City failed to make any finding that the reduced-size alternative was infeasible, and there was no substantial evidence in the record to support such a finding. (Id. at pp. 1355-1356.) That is not the case here. The City found that the HLA was economically infeasible and did not meet several project objectives, and substantial evidence supports these findings.
A lead agency's findings rejecting an alternative as infeasible or as not meeting project objectives must be supported by substantial evidence in the administrative record. (Guidelines, § 15091, subds. (a), (b); Laurel Heights, supra, 47 Cal.3d at p. 405.) Substantial evidence supports each of the City's findings or reasons rejecting the HLA.
First, substantial evidence shows that the HLA would not meet the project's land use planning, design, or conservation objectives because, as envisioned in the DEIR, it would require construction within Dead Indian Creek, with its attendant hydrological and ecological impacts. As explained in the Cornishe letter, the area identified in the DEIR as the HLA site area was not large enough to accommodate more than a single lot, unless the two 0.75- to 1.5-acre lots were built partly within the floodplain of Dead Indian Creek. The Cornishe letter supported this claim with detailed measurements of the HLA site area.
Substantial evidence also shows the two-home HLA was economically infeasible and would not meet the project's objective of maximizing the developed value of the 11.87-acre parcel. The Cornishe letter pointed out that the cost of either one or two homes in the HLA site area, on the 1.1-acre portion of the site located outside of Dead Indian Creek, would have been approximately $2.76 million, but "[d]ue to the constraints on the size, location, and elevation of the proposed site," and other limitations, the market value of the two homes would not exceed $1 million each, and the market value of one home would not exceed $2.5 million.
The Cornishe letter further indicated that the total costs of constructing two homes on the 0.75- to 1.5-acre lots partly within Dead Indian Creek would have been much higher than $2.76 million, but the market value of such homes would have been no more than $2.5 million combined. Indeed, the Cornishe letter, together with the photographs from the property at various elevations, showed that any home or homes built in the HLA site area—whether on two larger lots partly within Dead Indian Creek, or on the smaller lot or lots wholly outside of Dead Indian Creek—would have had views from no higher than 800 feet asl—too low to create higher value homes. The lower elevations of the HLA site area, shown in the DEIR, and the photographs taken from the property at 800 feet asl, shown in the ADEIR, supported this claim. By contrast, the two NPA homes, built on elevated lots at 809 and 820 feet asl, respectively, and 240 yards from the lambing pen, would have been worth $3.5 million each because they would have had "generous, unobstructed views."
Lastly, appellants claim the project's design objectives concerning "views" were impermissibly narrowed in the ADEIR from the DEIR, unduly restricting consideration of the HLA. Achieving "scenic" views was listed as a project objective in the DEIR, but the ADEIR revised this objective to "raise Lots 1 and 2 to an elevation from which views of Coachella Valley are readily available." This did not impermissibly narrow the project's design objectives, or unduly restrict consideration of the HLA. (Cf. In re Bay-Delta, etc. supra, 43 Cal.4th at p. 1166 [lead agency may not give a project's purpose "an artificially narrow definition"].) Indeed, the HLA was considered economically infeasible only after the City investigated it further and reasonably concluded, based on substantial evidence, that it was economically infeasible because its elevations would not allow for views of the Coachella Valley, which was necessary to create homes of sufficient value to cover their total development costs.
Save Round Valley, supra, 157 Cal.App.4th 1437, upon which appellants also rely, is also distinguishable on its facts. There, this court concluded that the lead agency's rejection of an alternative project site based on its allegedly inferior "aesthetics, views, and quality" was "too vague and conclusory to enable 'meaningful participation and criticism by the public,'" because the EIR contained no "meaningful information" concerning the physical features or views available from the alternative project site. (Id. at p. 1460.) That is not the case here. The ADEIR included photographs of the views from varying elevations of the 11.87-acre parcel, and explained that the HLA was economically infeasible because its site area was too low to permit views of the Coachella Valley, and such views were necessary to create homes of sufficient value to render the project economically feasible. E. The SOC Complies with CEQA
Appellants claim that the SOC must be set aside because (1) it is based upon an inadequate EIR; (2) its findings are not supported by substantial evidence; and (3) it did not make a good faith effort to inform the public. Not so.
1. Applicable Legal Principles
After an agency has certified an EIR for a project that will result in significant and unavoidable environmental impacts, the agency may not approve or carry out the project unless it finds and states in writing that the project will have specific economic, legal, social, technological, or other benefits that outweigh its significant environmental effects. (Pub. Resources Code, § 21081; Guidelines § 15093, subd. (b).) The agency's reasons for approving the project despite its unavoidable impacts are set forth in a SOC. (Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1222.) The statement is intended to show the balance the agency struck in weighing the benefits of the project against its unavoidable environmental impacts, and constitutes the "final stage" in a public agency's evaluation and decisionmaking process under CEQA. (Ibid.)
"[O]verriding considerations must be supported by substantial evidence in the EIR or elsewhere in the administrative record." (Cherry Valley Pass Acres & Neighbors v. City of Beaumont, supra, 190 Cal.App.4th at p. 357.) Unlike feasibility findings, which focus on the feasibility of specific alternatives and mitigation measures, overriding considerations are "larger, more general reasons for approving the project, such as the need to create new jobs, provide housing, generate taxes, and the like." (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 847.) "At least one overriding consideration must be stated for each of the project's significant and unavoidable environmental impacts." (Cherry Valley Pass Acres & Neighbors v. City of Beaumont, supra, at p. 356; see § 21081, subd. (b).)
2. Analysis
(a) The SOC is Not Based on an Inadequate EIR
Appellants first argue that the SOC is legally deficient and must be set aside because it is based on an inadequate EIR. They argue the City may not "simply forego" sufficient analysis in the EIR in favor of adopting a SOC that "'excuse' the impacts nonetheless."
This argument is an extension of appellants' previous claim, discussed above, that the EIR failed to adequately analyze project alternatives, including the HLA, and failed to adopt proper feasibility findings. For the reasons discussed, however, the EIR adequately analyzed the HLA and a reasonable range of alternatives, and substantial evidence supports the City's finding that the HLA and was economically infeasible and failed to meet several key project objectives.
(b) Substantial Evidence Supports the City's Overriding Considerations for Approving the Project
Appellants next argue that insufficient evidence supports several of the City's reasons for approving the project as set forth in its SOC, specifically, the City's "economic," "equitable," "overall planning," and "specific project benefit" considerations. We conclude that substantial evidence supports each of these considerations.
(i) Economic Considerations
As indicated, the SOC states that if development of the property were limited to the area north of the 400-yard buffer and entirely within Dead Indian Creek, then the fair market value of the property would be substantially less than its development costs; moreover, the "the economically viable use of the property would be significantly diminished and possibly reduced to nothing," exposing the City to a regulatory takings action by Cornishe and a significant financial burden on the City, and also depriving the City of property taxes on "two high-end single family homes."
Appellants claim insufficient evidence supports these conclusions because they are based on the "erroneous assumption that the only alternative was one home located in the area outside the buffer, effectively creating a false 'all or nothing' proposition for the City Council: either approve the proposed project or require development in the area outside the buffer and risk a regulatory taking." We disagree.
Nothing in the EIR nor in resolution No. 09-13, including the City's CEQA findings, presented a false "all or nothing" choice between the proposed project or NPA and limiting development of the property to the quarter-acre area north of the 400-yard buffer and within Dead Indian Creek. The CEQA findings discussed the two-unit HLA, the eight-unit "reduced project" alternative, and the NPA or proposed project. These findings clarified that the HLA was not limited to the area north of the 400-yard buffer, but would have developed two homes in the extreme northeast corner of the property, 300 yards from the lambing pen. The findings also noted that HLA was based on "very conceptual design parameters," and was economically infeasible. The eight-unit alternative was also rejected as having greater impacts than the NPA.
Additionally, substantial evidence shows that if the HLA were constructed on 0.75- to 1.5-acre lots in the area described in the DEIR, it would have required extensive and cost-prohibitive soil fill within Dead Indian Creek. Substantial evidence also shows that if a one- or two-unit alternative were built on the 1.1-acre portion of the identified HLA site area outside of Dead Indian Creek, it also would have been economically infeasible because the home or homes would have been built at lower elevations and would have been worth no more than $2.5 million, less than their total development costs.
The City's focus on the outside the buffer alternative in its discussion of overriding economic considerations in the SOC is perhaps not surprising, given that some of the commentators on the EIR complained that the City did not specifically consider an alternative that lay entirely outside the 400-yard buffer, and given the City's prior discussion of the economic infeasibility of the two-home HLA in the ADEIR and FEIR. At the SOC stage, the feasibility of the HLA was not being questioned; instead, the focus was on the feasibility of a one-unit outside the buffer alternative.
In any event, substantial evidence shows that the outside the buffer alternative was economically infeasible—more so than a one- or two-home version of the original HLA built solely on the 1.1 acre above Dead Indian Creek. Based on his experience in marking and selling properties in the neighboring Canyons at Bighorn development, Cardinelli estimated in November 2008 that the market value of the outside buffer alternative would "likely be much less than $2 million." Construction costs would be a minimum of $450 per square foot, or $1.719 million, and the cost of developing the lot and infrastructure would be an additional $750,000, rendering the outside the buffer alternative economically infeasible at a market price of less than $2.469 million.
Appellants also claim the City erroneously concluded in the SOC that it would be liable for regulatory taking if the value of the development was not sufficient to cover all of Cornishe's development costs. (See Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 736-737 [agency cannot avoid objective consideration of alternative simply because, prior to commencing environmental review, applicant made substantial investments in hopes of gaining approval for a particular alternative].) This argument misreads the SOC. The SOC does not state that the City will be liable in a regulatory takings action unless the fair market value of the development is high enough to allow Cornishe to recoup all of its development costs, from whatever sources. Instead, the SOC states that if the City were to limit development to the area outside the buffer, "the economically viable use of the property would be significantly diminished and possibly reduced to nothing," exposing the City to a regulatory takings action by Cornishe.
Substantial evidence supports this conclusion. The outside the buffer alternative was economically infeasible for the reasons discussed, and Cornishe had threatened to sue the City for a regulatory taking in the event development of the property were limited to the quarter-acre area outside the 400-yard buffer. Contrary to appellants' suggestion, the question is not whether the City would have been liable for a regulatory taking. Rather, the question is whether substantial evidence supports the City's determination that restricting development of the property to the area outside the 400-yard buffer would have exposed the City to a regulatory takings action, resulting in a significant financial burden to the City. That exposure was evident based on Cornishe's threats of litigation in the March 2006 Cornishe letter.
(ii) Equitable Considerations
In finding there were overriding equitable considerations for approving the project, the SOC focused on the inequities to the City and to Cornishe of limiting development on the property to the area outside the 400-yard buffer, given that the Institute chose to locate its lambing pen only 300 feet from the boundary of the property—with constructive if not actual knowledge that the property was zoned for residential uses. Thus, the SOC stated that: "If problems have arisen that were not expected by the Bighorn Institute at the time [it] established its operations so close to residentially zoned property, the City Council . . . believes that it is incumbent upon the Bighorn Institute to look to its own site or another site to mitigate impacts to its facilities as they now exist or may exist in the future." (Italics added.)
Appellants argue that insufficient evidence supports the italicized portion of this statement because "the record demonstrates that there are no alternative sites to relocate the lambing pen." This argument takes the italicized statement out of context and misses the City's point. The SOC did not assert that it was incumbent upon the Institute to relocate its facilities; rather, the SOC concluded it would be inequitable to restrict development on the property to 400 yards from the lambing pen, given that the Institute knew, or at least should have known, that the property was zoned for residential uses, and also because limiting development of the property exposed the City to "litigation, inequity, and loss of revenue." Appellants do not challenge the sufficiency of the evidence supporting this conclusion.
Appellants also challenge the City's finding that "there is no scientific consensus that a buffer of 400 yards, or any other distance, is required." The City stated that it was "persuaded by those experts who believe that no buffer, or only a small buffer, is necessary to mitigate all effects." Substantial evidence supports this conclusion. When the 400-yard buffer was established for the Altamira or Canyons at Bighorn project in 1991, there was indeed no scientific consensus that a 400-yard buffer, or a buffer of any other distance, was required to mitigate biological impacts on the lambing pen. Some commentators recommended no buffer, or a minimum buffer of 50 meters, while others recommended a buffer of up to one mile. In 2008, the City sought the expert opinion of Paul R. Krausman, a certified wildlife biologist who had recommended a 50-meter buffer in 1991. Professor Krausman pointed out there was no research supporting the need for a 400-yard buffer around bighorn sheep breeding facilities, and he was unaware of any literature or data suggesting that activities associated with the project, as described, would cause habituation resulting in the failure of lambs to survive in the wild.
(iii) Overall Planning Considerations
The SOC concluded there were "overall planning considerations" for approving the project despite its significant construction-phase impacts on noise, traffic, and air quality. In support of this conclusion, the SOC explained that when the City updated its general plan in 2004, it strove to balance environmental quality objectives, fiscal responsibility, and land use patterns, and if the project is not approved the City will be prevented from realizing its "full expectation" for the property. The SOC stated that the project "balances the firmly established rights of the property owner with protection of the environment," because it will place one of the last remaining parcels of undeveloped land along the City's southern boundary into productive use while preserving approximately eight acres of the parcel as open space.
In an earlier portion of the SOC, discussing the equitable considerations for approving the project, the SOC states: "It would be unreasonable for the Bighorn Institute to assume that the City . . . would now alter its general planning program to accommodate an adjacent land use which had willingly moved so close to the City." In arguing that the overall planning considerations are not supported by substantial evidence, appellants take issue with this statement and argue it erroneously assumes that protecting the lambing pen would require alteration of the City's General Plan. They also argue that the HLA would be consistent with the General Plan while allowing the City to realize its "full expectation "of developing the last remaining residential parcel along its southern boundary.
This argument, too, disregards the substantial evidence in the record that the HLA was economically infeasible and, if built within Dead Indian Creek as envisioned in the DEIR, would have had significant hydrological impacts on Dead Indian Creek. The argument also disregards the substantial evidence supporting the City's conclusion that the project balances the City's overall planning objectives of protecting the environment while allowing productive uses of private property. Indeed, substantial evidence shows that the project, with two high-end single family homes built on elevated building pads, would have a fair market value of $7 million and would generate significant property taxes for the City while having minimal, if any, significant impacts on the lambing pen.
(iv) Specific Project Benefits
Finally, the SOC states that each of the project's significant environmental impacts, including its presumed impacts on the lambing pen and its construction-phase impacts on air, noise, and traffic, were "acceptable" for the following independent reasons: (1) accommodating an incremental portion of projected regional growth in a location adjoining existing infrastructure, urban services, transportation corridors, and employment centers; (2) clustering development to preserve ecological areas and open space; (3) providing attractive architecture and landscaping while complementing the surrounding desert landscape; (4) providing open space in a manner compatible with protecting significant natural resources; and (5) implementing the City's general plan and zoning designations for residentially zoned property along the City's southern border. Appellants claim each of these conclusions is based on the erroneous assumption that there is no other feasible project alternative. For the reasons explained, there is not.
(c) The SOC Adequately Informed the Public
An SOC must make a good faith effort to inform the public concerning the adverse environmental consequences of approving a project, so that the public may weigh those consequences against other, potentially overriding considerations, and hold their elected decision makers accountable for their decisions. (See Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at pp. 718, 720.) "There is a sort of grand design in CEQA: Projects which significantly affect the environment can go forward, but only after the elected decision makers have their noses rubbed in those environmental effects, and vote to go forward anyway." (Vedanta Society of So. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 530.)
Appellants claim the SOC failed to adequately inform the public concerning the magnitude of the project's impacts on the lambing pen because it "belittles and attempts to diminish the need for a buffer entirely" while ignoring the "intense and thorough analysis" the City conducted in 1991. This argument disregards the detailed discussion in the SOC concerning the 400-yard buffer, its history, adherents and detractors, and the project's presumed impacts on the Institute's captive breeding program.
The SOC states: "Concern for impacts to captive adult bighorn sheep and born lambs in the lambing pen on the Bighorn Institute property south of the Project site has been a significant factor in developing several previous alternatives, as well as the New Preferred Alternative (the 'Project' addressed in these findings). As set forth in the FEIR, documented evidence is inconclusive regarding the threshold of disturbance that would be detrimental to the captive breeding program for [PBS] operated by the Bighorn Institute. In connection with the approval of the Altamira (now Canyons at Bighorn) project, forty biologists and others having knowledge and familiarity with bighorn sheep opined as to a reasonable separation between ongoing human activity in a built environment and the lambing pens at the Bighorn Institute. The biologists provided a wide range of opinions, varying from no separation to over a mile. In an effort to settle litigation regarding the Altamira project among the City, the Bighorn Institute, and Altamira, a legal, not biological, compromise was ultimately agreed upon to establish a 400 yard buffer between construction activity on the Canyons at Bighorn property and the lambing pen at the Bighorn Institute. There is thus no definitive scientific basis to establish that a buffer of 400 yards or any other distance is required to protect the captive breeding program at the Bighorn Institute. The Cornishe Property was specifically excluded in the legal settlement from the buffer area. . . .
"Bighorn sheep are understood to be more responsive to visual stimuli than they are to audio stimuli. Site preparation for and construction of two large homes with subsequent landscaping would occur in plain view of the lambing pen. Such intense visual construction activities could be expected out of an abundance of caution to significantly impact the bighorn sheep in the pen. . . . [¶] . . . [A]ctivity associated with normal residential occupancy, including vehicular arrivals and departures . . . as well as some of the associated outdoor activities and nighttime illumination of outdoor and indoor spaces can be presumed to be visible from the pen. The understanding of sheep behavior is not sufficiently refined to specify an activity level . . . at which the sheep's response is activated. Therefore, it must be conservatively assumed that the [NPA] could still have the potential to significantly impact captive adult sheep and born lambs in the lambing pen through visual and, to a lesser degree, auditory habituation. Mitigation is recommended to attempt to reduce this impact, although complete elimination of the impact is not possible given the proximity of the Project site to the lambing pen in its current location."
This discussion accurately summarizes the evidence in the administrative record concerning the buffer and its history, and adequately informed the public concerning whether a 400-yard buffer, or any buffer, was necessary or advisable to lessen the project's presumed adverse impacts on the Institute's captive breeding program. F. The City's Approval of TTM 31676 Did Not Violate the Subdivision Map Act
Appellants claim the City's approval of the TTM for the project violated the Subdivision Map Act because the EIR and SOC were legally inadequate. The legislative body of a city or county must deny approval of a tentative map if it finds "the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage . . . ." (Gov. Code, § 66474, subd. (e).) A tentative map may be approved, however, if an EIR was prepared for the project and a finding was made that specific economic, social or other considerations rendered infeasible the mitigation measures and project alternatives identified in the EIR. (Gov. Code, § 66474.01; Pub. Resources Code, § 21081, subd. (a)(3).) The approval of TTM 31676 did not violate Government Code section 66474, subdivision (e). The City found, and substantial evidence shows, that there were no other feasible project alternatives, all feasible mitigation measures were adopted, and various overriding considerations outweighed the project's potential impacts on the lambing pen. G. The City's Approval of the Project Did Not Authorize an Unlawful "Take" of PBS
Appellants claim the City's approval of the project despite its significant impacts on PBS unlawfully authorized a take of PBS in violation of the Fish and Game Code. Not so.
Bighorn sheep are a "threatened species" under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.) and are also listed as a "fully protected mammal" under section 4700 of the Fish and Game Code. Both provisions prohibit the unauthorized take of bighorn sheep. (See Fish & G. Code, §§ 2080, 4700.) To "take" means to "hunt, pursue, catch, capture, or kill" or "attempt to hunt, pursue, catch, capture, or kill." (Id., § 86.)
Section 4700 of the Fish and Game Code further provides that: "[N]o provision of this code or any other law shall be construed to authorize the issuance of permits or licenses to take any fully protected mammal . . . ." (Italics added.) Thus, appellants argue that section 4700 of the Fish and Game Code prohibits a public agency from approving any project that will result or will likely result in the take of a fully protected mammal, and here the City unlawfully approved the Cornishe project because it will likely result in the taking or killing of the Institute's PBS.
Appellants' claim fails because, as the trial court pointed out, there is insufficient evidence that the project will result in the death of one or more Institute PBS. As the trial court put it, "petitioners' argument that sheep will die because of stress or habituation from the . . . project is speculative . . . ." In order to establish a taking, appellants were required to establish a causal connection between the project and the death of one or more Institute PBS. (See Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1040 [habitat destruction does not constitute a taking when there is no showing of how many animals would be killed as a result].) Appellants failed to establish this causal connection.
A 1991 report prepared by several biologists in connection with the Altamira project stated: "[S]tress is an everyday occurrence in the bighorn's existence . . . . [¶] . . . [The Institute's] handling [of PBS] during investigations is potentially the greatest source of stress upon the captive animals. Repeated capture, blood sampling, nasal and throat culturing, and other restrained examinations are necessary, but nonetheless almost certainly impose considerable stress. This [Institute]-induced stress is in addition to the everyday experience of noise from Highway 74, aircraft, human activity, captivity, and a range of environmental stressors."
Professor Krausman echoed this concern in a June 2008 letter to the City in which he wrote: "The animals are already habituated to artificial conditions (i.e., the enclosure, supplemental feeding, and care takers) as is necessary for captive populations. . . . Researchers have evaluated how well captive reared sheep from the [Institute] survive in the wild; they did not do well . . . . The authors (Ostermann et al. 2002) that examined the captive breeding program, operated by the [Institute], did not attribute failure to habituation."
In sum, appellants failed to show the project would cause a take, or killing, of PBS in violation of Fish and Game Code sections 2080 and 4700, because they did not present sufficient evidence to establish a causal link between the potentially stressful effects or habituation effects of the project on the Institute's PBS, and the death or mortality rate of the Institute PBS, whether in captivity or following their release into the wild. H. Appellants Are Not Entitled to Declaratory Relief
In their cause of action for declaratory relief, appellants seek a judicial declaration that the project approvals will not immunize the City or Cornishe from liability "if future activities to implement the challenged [p]roject result in a 'take'" of PBS in violation of the Fish and Game Code. Appellants do not state a factually sufficient claim for declaratory relief. (Code Civ. Proc., § 1060.) Instead, they seek an advisory opinion based on a hypothetical set of facts, which is an improper basis for declaratory relief.
"'The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.'" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 71; Code Civ. Proc., § 1060.) A controversy is not ripe for adjudication unless it is "'"a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."' [Citations.]" (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722.) A judgment for declaratory relief "must decree, not suggest, what the parties may or may not do." (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117.)
We must also bear in mind that "'"[t]he purpose of a declaratory judgment is 'to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation' [citations]." Another purpose is to liquidate doubts with respect to uncertainties or controversies which might otherwise result in subsequent litigation [citation].' [Citation.]" (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 360.)
At this time, the question of whether the project approvals should immunize the City or Cornishe from liability in the event "future activities" result in a take of PBS is not justiciable or ripe for adjudication. No practical purpose would be served, nor would future litigation be avoided, if appellants were granted the declaratory relief they seek. There would still be a controversy over what caused the claimed take of PBS.
In approving the project, the City imposed numerous mitigation measures designed to reduce or eliminate all potential impacts on PBS. These included prohibiting construction during the lambing season, orienting the driveways and garages of the homes away from the lambing pen, shielding all lighting away from the lambing pen, and prohibiting dogs on the project site, either as residents or visitors. There is no indication that the City or Cornishe will disregard these measures and implement or maintain the project in a way that will result in a take of PBS.
Moreover, the circumstances surrounding any future take of PBS, and whether the City and Cornish followed the imposed mitigation measures and other conditions for approving the project in connection with such a future take of PBS, may have a substantial bearing on whether the project approvals should immunize the City and Cornishe from liability. Without knowing the precise circumstances under which such a hypothetical future take or takes will have occurred, it is impossible to determine whether the project approvals should immunize the City or Cornishe from liability for a future take of PBS.
Accordingly, the resolution of whether the project approvals immunize the City or Cornishe from liability for any future take of PBS should await a future take of PBS. This would present a ripe, justiciable controversy, "'"admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."'" (Alameda County Land Use Assn. v. City of Hayward, supra, 38 Cal.App.4th at p. 1722.)
IV. DISPOSITION
The judgment is affirmed. The parties shall bear their respective costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
HOLLENHORST
Acting P.J.
RICHLI
J.