BANNING RANCH CONSERVANCY v. CITY OF NEWPORT BEACH (NEWPORT BANNING RANCH)Appellant, Banning Ranch Conservancy, Petition for ReviewCal.June 30, 2015 S 2 Z 74, ‘d 3 __ SUPREME COURT FILE No. / JUN 80 915 IN THE SUPREME COURT OF Frank A. McGuire Clerk THE STATE OF CALIFORNIA Deputy epu BANNING RANCH CONSERVANCY, Plaintiff and Appellant, Vv. CITY OF NEWPORTBEACHetal., Defendants and Appellants; NEWPORT BANNING RANCH LLCet al., Real Parties in Interest and Appellants. PETITION FOR REVIEW Of a Published Decision of the Fourth Appellate District, Division Three, Case No. G049691 Reversing a Judgment of the Superior Court of Orange County Case No. 30-2012-00593557 The Honorable Nancy Wieben Stock and Robert Becking JOHN G. McCLENDON(SBN 145077) John@CEQA.com DOUGLASM. JOHNSON(SBN 297582) Douglas@CEQA.com LEIBOLD McCLENDON & MANN,P.C. 23422 Mill Creek Drive, Suite 105 Laguna Hills, California 92653 Telephone: (949) 457-6300 Telecopier: (949) 457-6305 Attorneysfor Petitioner BANNING RANCH CONSERVANCY No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA BANNING RANCH CONSERVANCY, Plaintiff and Appellant, Vv. CITY OF NEWPORT BEACHetal., Defendants and Appellants; NEWPORT BANNING RANCH LLCetal., Real Parties in Interest and Appellants. PETITION FOR REVIEW Of a Published Decision of the Fourth Appellate District, Division Three, Case No. G049691 Reversing a Judgmentofthe Superior Court of Orange County Case No.30-2012-00593557 The Honorable Nancy Wieben Stock and Robert Becking JOHN G. McCLENDON(SBN 145077) John@CEQA.com DOUGLASM. JOHNSON(SBN 297582) Douglas@CEQA.com LEIBOLD McCLENDON & MANN,P.C. 23422 Mill Creek Drive, Suite 105 LagunaHills, California 92653 Telephone: (949) 457-6300 Telecopier: (949) 457-6305 Attorneysfor Petitioner BANNING RANCH CONSERVANCY TABLE OF CONTENTS QUESTIONS FOR REVIEW .........0. 00. c cece ccc ee cece ceeeeeees 1 INTRODUCTION.....0 0...eete eteneeeeees 2 STATEMENTOF FACTS .... 0.2.0.0... ccc cece ccc eeeeeceeccunees 6 A. The Coastal Act and “ESHA”... 0.0.0.ccece e cece ey 6 B. Banning Ranch ........... 0... 0c c cece cece cece ence eeceeeee 7 C. The City’s CLUP and ESHA ........ 000.00 e cece cece eee ees 8 D. General Plan Update Policies Specific to Banning Ranch .......... 10 E. Banning Ranch’s Biologist Finds ESHA on the Property .......... 12 F, The City Refuses to Address ESHA in the EIR .................. 13 G. The City Refuses to Work with the Coastal Commission .......... 14 PROCEDURAL HISTORY ...........0 00.00 c cece cece ceeceeeeeeee 17 A. The Trial Court Finds Native Plant Controlling andthe Project Inconsistent With the General Plan ..................... 17 B. The Court of Appeal Decision ............. 000 ccc cceceeeecee. 19 ARGUMENT.. 0.0.0.eeect eeeneneennes 20 A. The Opinion Conflicts with Douda v. California Coastal Com. ..... 20 B. The Opinion Contravenes Section 30336 of the Coastal Act ........ 22 C. The Opinion Conflicts with California Native Plant Society ........ 24 D. The Opinion Rejects Fundamental CEQA Principles ............. 31 CONCLUSION 2.2.0... ccc ccc ec ccc cee c eee ntnteenneneey 36 TABLE OF CONTENTS CERTIFICATION OF WORD COUNT........... 0.0. ccceccceceeee. 37 -ii- TABLE OF AUTHORITIES Page: CASES: Bolsa Chica Land Trust v. Superior Court (1999) 71 CalApp.4th 493 200...eee ee ees 6, 7 California Native Plant Society v. City ofRancho Cordova (2009) 172 Cal.App.4th 603 .............. 4,5, 17, 19, 24-25, 28, 36 Delaney v. Superior Court (1990) 50 Cal.3d 785 0...ecence eeees 31 DiamondMultimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036 2.2... cece cece cece ees 30 Douda vy. California coastal Com. (2008) 159 Cal.App.4th 1181 2.00.00. 3, 5, 20-23, 36 Kane v. Hurley (1994) 30 Cal.App.4th 859 00...ccece eee 31 Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531 2...cece eens eee nee 4,30 OrangeCitizensfor Parks & Recreation v. Superior Court (2013) 217 Cal.App.4th 2.000...0cccc cece eee eeeees 5 Yost v. Thomas (1984) 36 Cal.3d 561 2...cece cece eee eenees 8 STATUTES AND REGULATIONS: Cal Code Regs., tit. 14 § 15001 ....0.cece ccc ee eee ee 33 Cal Code Regs., tit. 14 § 15050 2...ccc ccc ce cee eeeee 32 Cal Code Regs., tit. 14 § 15121 2...cece ccc cece ce eeee 33 Cal Code Regs., tit. 14 § 15144 20.ccc ccc cece cence 32 -111- TABLE OF AUTHORITIES Page: Gov. Code § 65860 20... cece cece eee e cence cece ee. 24 Gov. Code § 66473.5 oo.ccc een e eee cecnceeeecees 24 Gov. Code § 65867.5(a) 2...ccc cece cece eee eceee. 24 Public Resources Code Section 21000, et RY104,31 Public Resources Code Section 21005(a) ... 0.0... ccc cece ccc cee eee. 32 Public Resources Code Section 21081.6 0.0.0.0... .cccccecceceeeeeee. 33 Public Resources Code Section 30000,et SCG. eee cece cece eee eeas 6 Public Resources Code Section 30007.5. 20.0.0... cece cece cccece cece. 21 Public Resources Code Section 30009. ...... 00... cece cece cecee cece. 6 Public Resources Code Section 30108.5. 00.0... cece ccccecceccccceee. 8 Public Resources Code Section 30108.6. 2.0.0... cece cec cee cececee een. 8 Public Resources Code Section 30336 1.0.2... ccc ccc ceeeccece ee. 22, 23 Public Resources Code Section 30500. 2.0.0.0... cece ccc cee cececceee, 23 -j/V- To the Honorable Chief Justice of the State of California and Associate Justices of the California Supreme Court: BANNING RANCH CONSERVANCYrespectfully petitions for review of a published opinion of the Court of Appeal. I. QUESTIONS FOR REVIEW California’s Coastal Act accords extraordinary protection to environmentally sensitive habitat areas (“ESHA”) within the 1.5 million-acre Coastal Zone. Is an ESHA determination a legal determination that a local government cannot make under the Coastal Actif it lacks a local coastal plan? Maya local government reject an offer from the California Coastal Commissiontoassist in identifying ESHAthat mightbe impacted by a proposed project within the Coastal Zone? Maya city or county incorporate a specific policyin its general plan to fully mitigate the environmental impacts of a future project and later refuse to implementthat policy in a waythat effectuates it purpose? Maya local government purge from its files empirical evidence showing a proposedproject within the Coastal Zone will impact ESHA and not mention that evidence in the environmental impactreport it prepares for the project? INTRODUCTION As former California Coastal Commission memberSteve Blank noted, “With 39 million people in the state, there’s no rational reason there aren’t condos, hotels, houses, shopping centers and freeways, wall-to-wall for most of the length of our state’s coast (instead ofjust in Southern California).”! There is, however,a political reason:the voters’ approval ofProposition 20 in 1972 whichresulted in the Legislature’s enactmentofthe California Coastal Act of 1976 (“Coastal Act”). “The Coastal Act saved California from looking like the coast of New Jersey, giving us the mostpristine and undeveloped coast in the country — with recreation and accessforall. To achieve this amazing accomplishment, the coastal zone has the strictest zoning and planning requirementsin the country.’ At the heart of the Coastal Act is the restriction it places on developmentin “environmentally sensitive habitat areas,” or “ESHA,” by protecting these areas from any disruption. Banning Ranch Conservancy v. City ofNewport Beach (2015) 236 Cal.App.4th 1341 (“the Opinion,” attached as Exhibit A), in which Petitioner 1 “Farming for Developers: Coastal Commission Stories — Lesson 1" (June 10, 2014), http://steveblank.com/category/california-coastal-commission/. ? Ibid. seeks review, now severely curtails that protection. Indeed, the Opiniontiers offofan earlier published opinion from Division Three ofthe Fourth District, Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1233-1234 (“BRC I’), which held a local agency’s ESHA analysis of a proposedprojectis sufficient as longasit simply acknowledges areas having the potential to be considered ESHA by the California Coastal Commission (“Coastal Commission”). The Opinion here significantly extends BRC I by holding local governments do not have to make even this acknowledgment because an ESHA determination is a /egal conclusion that only the Coastal Commission is empoweredto make underthe Coastal Act. This one-two punchintothe gut of the Coastal Act’s ESHA protections is a matter of critical statewide importance justifying review by this Court. The Opinion does not, however, simply stop at paving the pathwayfor local agencies to sidestep the Coastal Act’s ESHA protections. By insisting that only the Coastal Commission(and not the City ofNewport Beach) could make an ESHA designation despite documentation that the project site contained numerouspotential ESHAs, the Opinion undoes, without citation, the SecondDistrict’s holding in Doudav. California Coastal Com. (2008) 159 Cal.App.4th 1181 (“Douda’’), which held ESHA designations could be made by either the local agency or the Coastal Commission. The Opinion also dismisses the Third District’s decision in California Native Plant Society v. City ofRancho Cordova (2009) 172 Cal.App.4th 603 (“Native Plant”), by expressly rejectingits reasoning as “incompatible” with the Fourth District’s deferential review accorded to a local agency’s interpretation of a city’s general plan. (Opinion, at p. 26.) In so doing, the Opinion ignoresthis Court’s mandate that courts give effect to the plain text of a city’s general plan.> Native Plant follows that mandate and, in comparison, is better reasoned. Thus, the Opinion’s holding results in a disagreement between the Third and Fourth District, and this Court should provideclarification. Finally, the Opinion repudiates several keyprinciplesofthe California Environmental Quality Act “(“CEQA”).! CEQA requires collaboration between a lead agency andstate agencies.° The Opinion would allow lead agencies to go it alone. Also, CEQA contains stringent procedural prerequisites. The Opinion would relax those strictures and allow environmental impact reports (“EIRs”) to follow less than complete methodologies. Furthermore, CEQA mandates open and transparent informationaldisclosures. The Opinion enablescertain substantive facts about 3 Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543 (“Lesher”). 4 Public Resources Codesection 21000, et seq. ° Cal Code Regs., tit. 14 § 15050. 4 a project to be withdrawnfrompublic scrutinyifother comparable information is provided, however incomplete or equivocal. Moreover, CEQA requires mitigation measures to be fully enforceable by (among other things) incorporating those measures into a plan. The Opinion permits a city to classify its incorporated mitigation measure a “helpful reminder”if the city choosesto refuse to implementthat measure. (Opinion,at p. 22.) No reported decision has ever held a CEQA mitigation measure maylater be disregarded as a vague, optional suggestion. Pursuantto California Rules ofCourt, rule 8.500(b)( 1), Supreme Court review is neededto (1) resolve the decisional conflict between the Opinion and the Second District Court of Appeal’s opinion in Douda; (2) settle the important issue of law as to whether the determination of ESHAis a legal determination local governmentsare not empowered to make; (3) resolve the decisional conflict between the Opinion and the Third District Court of Appeal’s opinion in Native Plant; and (4) settle important issues of law fundamental to CEQA.’ 8 Public Resources Code section 21081.6, subdivision (b). 7 It may also be appropriate for this Court to grant review pursuant to California Rules of Court, rule 8.512, subdivision (d), and defer briefing pending decision on a pending casealso addressing general plan interpretation and authored by Justice Ikola. (Orange Citizensfor Parks & Recreation v. Superior Court (2013) 217 Cal.App.4th 1005, review granted Oct. 30, 2013, 5212800.) 5 STATEMENTOF FACTS A. The Coastal Act and “ESHA” In 1972, California voters approved the Coastal Zone Conservation Act (Proposition 20), creating temporary commissionsto develop a statewide plan for coastal protection. This plan was submitted to the Legislature in 1975, and led to the passageofthe California Coastal Act in 1976, whichestablished a State agency—the California Coastal Commission—charged with protecting and enhancing the resources of the Coastal Zone mapped bythe Legislature. (/d.; Pub. Res. Code § 30000, et seq.) The Coastal Act contains policies guiding development and conservation alongthe state’s 1,100-mile coastline, and its intent is to protect, maintain, and where feasible, enhance andrestore the overall quality ofthe 1.5 million-acre Coastal Zone environmentandits natural andartificial resources. (/d.) The Coastal Act must“beliberally construed to accomplishits purposes and objectives.” (Pub. Resources Code § 30009; Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 506 (“Bolsa Chica’) [“under both the Coastal Act and CEQA:‘Thecourts are enjoined to construethestatute liberally in light of its beneficent purposes. [Citation.] The highest priority must be given to environmental consideration in interpreting the statute [citation].’”].) One ofthe Coastal Act’s keypurposesis to provide “heightened protection” to what are called environmentally sensitive habitat areas, or ESHA.(/d.) Section 30107.5 ofthe Coastal Act defines ESHA as “any area in whichplantor animallife or their habitats are either rare or especially valuable because oftheir special nature or role in an ecosystem and which could be easily disturbed or degraded by humanactivities and developments.” The consequencesofland having ESHAonitare delineatedin section 30240 ofthe Coastal Act: “(a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependenton those resourcesshall be allowed within those areas. (b) Developmentin areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designedto prevent impacts which would significantly degrade those areas, and shall be compatible with continuanceofthose habitat and recreation areas.” “Thus development in ESHAareas themselvesis limited to uses dependent on those resources, and developmentin adjacent areas must carefully safeguard their preservation.” (Bolsa Chica, supra,at p. 507.) B. Banning Ranch Encompassingover 400 acres within the Coastal Zone, Banning Ranch is the largest parcel of unprotected coastal open space remaining in Orange County. (AR 10:15855.) Despite disturbance from oil production operations, it contains high-quality riparian and wetlands habitat with a broad variety of vegetation types providing habitatfor state and federally listed endangered and threatened species. (/d.; AR 10:23010; AR 4:3180; 9:14041 [map].) A 2002 City-commissionedbiological study delineated the entirety ofBanning Ranch as ESHA.(AR 10:23695.) In 2003, the United States Fish and Wildlife Service designated the entirety ofBanning Ranch as“critical habitat” for the federally threatened California gnatcatcher, and in 2007 designated fifteen acres of “vernalpool complexes”as “critical habitat” for the federally endangered San Diegofairy shrimp. (/d.; AR 3:1256, 1825; 9:14342, 14352; 9:15864, 15859, 15863, 10:46338.) C. The City’s CLUP and ESHA To assure conformity with the Coastal Act, local governments lying in whole or in part within the Coastal Zone must prepare and submit a local coastal plan (“LCP”) to the Coastal Commission consisting ofa coastal land use plan (““CLUP”) plus zoning and other implementing actions. (Pub. Resources Code §§ 30108.5, 30108.6; Yost v. Thomas (1984) 36 Cal.3d 561, 566.) The City’s CLUP contains the following policy regarding ESHA: “Policies 4.1.1-1. Define any area in whichplant or animallife or their habitats are either rare or especially valuable because of their special natureor role in an ecosystem and which could be easily disturbed or degraded by human activities and developments as an environmentally sensitive habitat area (ESHA). Usinga site-specific survey and analysis by a qualified biologist, evaluate the following attributes when determining whether a habitat area meets the definition of an ESHA: A. The presence of natural communities that have been identified as rare by the California Department of Fish and Game. B. The recorded or potential presence of plant or animal species designated as rare, threatened, or endangered under State or Federal law. C. The presence or potential presence of plant or animal species that are not listed under State or Federal law, but for whichthere is other compelling evidence of rarity, such as designation as a 1B or 2 species by the California Native Plant Society...” (AR 3:1242-1243.) The City’s CLUP further entitles ESHAtoprotections such as: “4.1.1-4. Protect ESHAs against any significant disruption of habitat values. 4.1.1-6. Require development in areas adjacent to environmentally sensitive habitat areas to be sited and designed to prevent impacts that would significantly degrade thoseareas, and to be compatible with the continuanceofthosehabitat areas. 4.1.1-7. Limit uses within ESHAsto only those uses that are dependent on such resources. 4.1.1-9. Where feasible, confine development adjacent to ESHAsto low impactland uses, such as open space and passive recreation.” id.) Most important, whenhabitats meeting the definition ofESHA occur, the City’s CLUPstates “the presumptionis that they are ESHA andthe burden ofproofis on the property ownerorproject proponent to demonstratethatthat presumption is rebutted by site-specific evidence.” (AR 3:913.) “[D]ue to unresolvedissuesrelating to land use public access, and the protection of coastal resources,” the CLUP “whiteholed” Banning Ranch by designating it as a Deferred Certification Area “in order to avoid delay in certifying the balance of the LCP.” (AR 3:925; 4:3260-3261.) D. General Plan Update Policies Specific to Banning Ranch While seeking an LCP,the City also initiatedits first comprehensive General Plan updatein over thirty years. (AR 10:26214-26216.) What with Banning Ranchbeing “high-quality wildlife habitat,” the General Plan Update 10 prioritized its acquisition as an open space amenity for the community and region and called for consolidating oil operations, restoring wetlands, providing nature education andinterpretative facilities, and a park to serve residents. (AR 10:26244; 26302-26305.) If acquisition for open space proved unsuccessful, the General Plan Update allowed Banning Ranchto be developedas a residential village with a majority ofthe site preservedas open space. (AR 10:26305.) However,either scenario required the restoration and enhancementof “wetlands and wildlife habitats in accordance with the requirements of state and federal agencies.” (AR 10:26309-263 10.) And to guarantee environmental impacts caused under either scenario would be less than significant, the General Plan Update incorporated as policies specific to Banning Ranch several mitigation measures, including the following: “LU 6.5.6 Coordination with State and Federal Agencies Work with appropriate state and federal agencies to identify wetlandsandhabitats to be preserved and/or restored and those on which developmentwill be permitted.” (AR 10:23164, 23167, 10:22892, 26013; bold in original.) Because those policies stipulated “that any development would have to be located and designedto protect views,the bluffs, natural drainage, and importanthabitat,” the environmental impact report prepared for the General Plan Update 11 concludedthe City’s compliance with them ensuredthat “[i]mpacts associated with land use compatibility would be less than significant.” (/d.; AR 10:23177.) The City adopted the General Plan Update on July 25, 2006, and the voters approved it on November 25, 2006. (AR 4:3100.) E. Banning Ranch’s Biologist Finds ESHA onthe Property After the City concluded the General Plan Update’s preferred Banning Ranchscenario wasinfeasible, in August 2008 the owners of Banning Ranch (“RPI”) submitted a proposal to develop the property at the maximum density allowed underthe alternative scenario. (Opinion,at p. 10.) In compliance with the CEQA mitigation measures built into the General Plan Update, RPI concurrently submitted its biologist’s Biological Technical Report, which identified and mapped large areas of potential ESHA present on Banning Ranchby utilizing the City’s CLUPcriteria for identifying ESHA. (Opinion, at p. 11; AR 9:13710; 3 AA 744, 749; AR 10:46022.) To avoid disturbing this ESHA,RPI’s developmentplan did not include the extension ofan arterial four-lane road across it. (3 AA 755-756; AR 10:36559.) Outside ofpublic purview, however,the City’s electedofficials insisted on the road extension being part ofRPI’s development. (AR 9:13723, 13790- 13791.) Despite RPI’s biologist cautioning that the road extension “would cross through a largeportion ofproject open space containing areas ofESHA,” 12 “impact significant areas of ESHA scrub and wetlands,” and “result in temporary impacts to ESHA scrub andjurisdictional drainages, and significant permanent impacts to ESHAscrub and wetlands,” RPI revised its development plan to include the road extension. (AR 4:3177; AR 9:13801-13803, 13805, 15760.) On April 14, 2011, the Coastal Commission,the City, and RPI agreed to a consent restoration agreement for Banning Ranch in which they acknowledgedthepresence ofESHA on Banning Ranchthathad been illegally cleared,andthe violators agreedto restore that ESHA plus additional acreage andpaya $300,000fine. (AR 9:14161-14162.) The following month the City’s planning manager wrote RPI asking, “Can you give me some idea on what revisionsto the project, ifany, with regards to Coastal Commission-designated ESHAareas?” (AR 9:14170.) RPI replied the next day saying, “Norevisions. Wewill have to fight for our project.” (/d.) F. The City Refuses to Address ESHAin the EIR In September, 2011, the City circulated for public review a 1,400-page draft environmental impact report with 5,560 pages of appendices (“DEIR”) for the Project. (AR 8:13625-13626, Opinion,at 12.) The DEIRnoted Banning Ranch’sstatus as a Deferred Certification Area excludedit from the City’s CLUP yet stated the Coastal Commission would evaluate the Project’s potential impacts to ESHA byusing the Coastal Act and guidance from the 13 City’s CLUP. (AR 5:3261.) However, despite not working with the Coastal Commission to identify any ESHA on Banning Ranch or applying either the Coastal Act’s or the CLUP’s definition of ESHA to the Project, the DEIR concluded the Project was “considered consistent” with the Coastal Act. (AR 4:3323, 3334-3342.) Numerous public and private entities and individuals submitted comments on the DEIR, with the main complaint being the DEIR’s failure to address the presence ofESHAonthe Projectsite. (AR 3:858-862, 1152, 1248- 1249, 1429, 1434-1435, 1512-1517, 1823-1824.) This failure to make any determination as to the existence of ESHA onthe Project was baffling since it was not only contrary to CEQA policy, but an earlier City study had previously mapped probable ESHA onthe Project site, and the Project included the 17/19 Extension through what RPI’s own consultant admitted was ESHA.(AR 3:1248, 1516, 1824; 10:15859 [map].) G. The City Refuses to Work With the Coastal Commission Coastal Commission staff was particularly critical of the Project and DEIR,notingin a letter the City’s CLUP provided “strong guidance”...“aimed at the protection of coastal resources” and urged that “[t]he EIR should analyze the consistency of the proposed development with applicable policies in the certified [CLUP] and Chapter3 policies of the Coastal Act and identify and address impacts accordingly.” (AR 3:91 1-912: emphasis 14 in original.) While acknowledging the CLUP did not currently apply to the Projectsite, staff noted the CLUP nevertheless: “contains numerouspolicies for coastal resource protection that should be referenced with regard to this site. As the most proximateandrelevantdiscussionofhabitat areas in and around the City, a discussion of the policies of the [CLUP] for the City ofNewport Beach should be included within the EIR.” (AR 3:913; emphasis in original.) Staff then noted the City’s CLUP’s presumption ofESHA,andits placementofthe burden ofproofon landowners and project applicants to show otherwise, and reiterated the “significant amount of guidanceavailable in both the Coastal Act and the [CLUP]for the City.” Ud.) Focusing on whether the Project site actually contained ESHA,staff noted that, while it had not yet performed a formal ESHA delineation for the Site, “the site is known to support significant numbers ofsensitive species, andthereare likely significant areas of ESHA on the site. ESHA determinations are based on site specific circumstances, which the Commissionhasnot had the ability to review in full. However, generally, habitat which supports sensitive species would be considered ESHA.” 15 (AR 3:914.) Noting how importantit was “that the EIR process incorporate a determination of probable ESHAlocationsand their required buffers before land use areas and development footprints are established,”staff urged “that ESHA and wetland delineations and recommended buffers be reviewed by Coastal Commission staff biologists before the EIR is finalized.” (d.; emphasis in original.) Staff then informed the City that, based on Coastal Commissionstaff's “preliminary analysis” of the Project, the development proposedin the [DJEIR does not appear to be compatible with Coastal Act Section 30240,” and specifically noted that Coastal Commission staff had already “determined that a four lane arterial road in the proposed location wouldresult in significant, unavoidable impacts to ESHA.Therefore,staffhas determined that the proposed arterial road would be inconsistent with the Coastal Act.” (AR 3:914-915.) The City responded by claiming the determination of what areas on Banning Ranch are ESHAwasthe Coastal Commission’s to make and notthe City’s; thus,it was unnecessary for the City, whether under CEQA,the Coastal Act, or its own CLUP,to identify ESHAin the EIR. (Opinion,at p. 16.) In July 2012, the City approved the Project. 16 PROCEDURAL HISTORY A. The Trial Court Finds Native Plant Controlling and the Project Inconsistent With the General Plan The Conservancypetitioned for a writ of mandate challenging on the grounds that the EIR was legally inadequate andthe City violated its General Plan by approvingthe Project. (Opinion, at p. 17; 1 AA 1-22.) Finding Native Plant “directly on point here,”the trial court concluded the City’s approval of the Project was inconsistent with the General Plan. (Reporter’s Transcript [“RT”] 6:8-9; 5 AA 1272-1288.) “The reasonable reading of Strategy 6.5.6 would lead to the conclusionthat before the Project goes forward, before it can be approved, the City mustidentify which parts ofBanning Ranch will be restored, preserved and developed. And, inso identifying thoseparts, the City’s policy is to coordinate with the State and Federal agencies in making thatidentification. Did the City coordinate with the Coastal Commission to identify the wetlands and habitats that would be developed /sic/, preserved or developed as required by California Native Plant Society? The answer is no. And, the exact opposite is true. Whenthe Coastal Commission offered to coordinate, offered to 17 assist in identifying,the City rejected the offer and deferred the issue altogether. [T]here is an implicit timeframe in Strategy 6.5.6; what the Petitioner calls the “temporal” aspect of Strategy 6.5.6. The identification of what Property is to be developed, rather than preserved or restored, must be determined prior to an authorization of a project, as the Strategy talks to the future, what“will be” developed. The Strategy doesn’tstate that the City is to identify the property to be developed and then seek the Coastal Commission’s approval; the Strategy states that whatis to be developedis to be identified through the coordination. [I]f the City’s position is correct, that it could coordinate up to the point of the approval or denial of the Project by the Coastal Commission, with regard to the existence of potential ESHA, whatis the purpose of Strategy 6.5.6? It would have none. (5 AA 1281-1284; bold anditalics in original.) 18 Judgmentwasenteredfor the Conservancy and a writ ofmandate issued in January, 2014 directing the City to set aside all Project approvals except certification of the EIR. (Opinion,at p. 18; 6 AA 1442.) The City and RPI appealed and the Conservancycross-appealed. B. The Court of Appeal Decision The Opinion reversed the judgment and directed the trial court to set aside the peremptory writ of mandate. (Opinion,at p. 31.) Rejecting thetrial court’s conclusion that General Plan Policy LU 6.5.6 logically required the City to work with the Coastal Commissionin identifying ESHA on Banning Ranch to be preserved and restored before approving its development, the Opinion upheld the City’s conclusion “that LU 6.5.6 wasdesigned as a helpful reminderofthe City’s legal obligation to ‘work with’ all necessary agencies in the course of developing Banning Ranch.” (Jd. at 22,italics added.) Acknowledging that Native Plant “wasnoteasily distinguished,”the Fourth District nevertheless rejected its reasoning. (/d. at p. 26.) The Conservancydid notpetition for rehearing in the Court ofAppeal, and the Opinion is final as of June 19, 2015. (Cal. Rules of Court, rule 8.264(b)(1).) The Conservancy now files this Petition in this Court under California Rules of Court, rule 8.500(a)(1) & (e)(1). 19 ARGUMENT A. The Opinion Conflicts with Douda v. California Coastal Com. The Opinion incorrectly affirms the City’s position that it lacked the legal authority to declare portions ofthe project site ESHA dueto not having an LCP for Banning Ranchand,therefore, could properly defer discussion of the impacts on ESHAfrom the EIR until the Coastal Commission madethat determination. In doing so, the Opinion contravenes the Second District’s decision in Doudav. California Coastal Com. (2008) 159 Cal.App.4th 1181 (“Douda’’). The Doudacourt foundthat an “issuing agency,” whetherit be the California Coastal Commission or a local governmentagency, can unilaterally designate ESHApriorto the certification ofa local coastal program (LCP). (/d. at p. 1193.) While the court foundthat an issuing agency cannotdeviate from a certified LCP and designate additional ESHA,it held that if an LCP has not been certified, then “allow[ing] the issuing agencyto protect natural resources for the benefit of the public by designating new areas when they meetthe definition ofenvironmentally sensitive area...more closely comports with the declared and salutary purposes of the Coastal Act.”(Ibid.) The Doudashadfiled an application for a coastal developmentpermit to constructa single-family homein the Coastal Zone in Los Angeles County. (Id. at p. 1190.) The Coastal Commission’s staff denied the application, concludingthat the propertymet the definition ofan environmentally sensitive 20 habitat area. (/bid.) In that case, the County of Los Angeles had not yet prepared a local coastal program, and the Doudas arguedthat prior to the certification of a local coastal program a local government is powerless to designate ESHA.The court held, however, that in the absenceofa certified land use plan orcertified local coastal program, a local government cannot escape the responsibility ofidentifying ESHAby deferring that designation to the Coastal Commission. (/d. at p. 1198.) In enacting the Coastal Act, the Legislature declared, “[I]n carrying out the provisions of [the Coastal Act] suchconflicts be resolved in a manner which onbalanceis the mostprotective of significant coastal resources.” (Id. at p. 1194; Pub. Resources Code § 30007.5.) Applying this mandate, the Douda court properly finds that ESHA must be protected: “This conclusion is supported by the observation that section 30240 is not specific to the Commission.It provides guidance to any issuing agency, whether that agency is the Commission or a local government. If section 30240 was circumscribed by section 30502, then a local governmentacting as an issuing agency priorto the certification of a local coastal program would be rendered powerless to protect environmentally sensitive habitat areas that are undesignated. This does not 21 comport with the directive in section 30240 that such areas “shall” be protected.” (Douda, at p. 1198, emphasis added.) In contrast, the Opinion holdsthat the Coastal Act’s mandate does not apply to local governments whentheidentification ofESHAis involved, since “an ESHAdesignationis a legal determination.” (Opinion,at p. 23, fn. 13.) There is simply no support in the Coastal Act allowingforthis relegation of ESHAto a matterof line drawing. B. The Opinion Contravenes Section 30336 of the Coastal Act The Opinionalso fails to recognize the second conflict it creates with Douda, which is its interpretation of the provision in the Coastal Act pertaining to State collaboration with local government agencies in Public Resources Codesection 30336. Section 30336 actually requires the Coastal Commissionto assist local agencies in complying with the Coastal Act and similarly mandates that those agencies “cooperate with” the Coastal Commission at the outset of the planning process. This provision of the Coastal Act directs that, “The commission shall, to the maximum extent feasible,assist local governments in exercising the planning and regulatory powers and responsibilities provided for by this division where the local government elects to exercise those powers and 22 responsibilities and requests assistance from the commission, and shall cooperate with and assist other public agencies in carrying out this division. Similarly, every public agency, including regional and state agencies and local governments, shall cooperate with the commissionandshall, to the extent their resources permit, provide any advice, assistance,or information the commission may require to perform its duties and to more effectively exercise its authority.” (Pub. Resources Code § 30336.) Douda affirmed that protection of the Coastal Zone necessitates a collaborative effort between the Coastal Commission andlocal governments. The Coastal Actreflects this by requiring local governments to cooperate with the Coastal Commission by providing information necessary to perform its duties. Moreover, the court rejected plaintiffs’ contention that Public Resources Code, § 30500,establishes that local governments essentially have exclusive say over the content of land use plans and local coastal programs. (Douda v. California Coastal Com., supra, 159 Cal.App.4th at p. 1182.) The Legislature’s finding that the Coastal Act“rel[ies] heavily on local government and local land use planning and procedures” to accomplish its purpose contrast with the Opinion’s holding that the Coastal Act’s mandate does not apply to local governments when the identification of ESHA is 23 involved, because”an ESHA designationis a legal determination” and “[w]e have not been pointed to any authority indicating that the City is required under the Coastal Actto identify ESHAin a project not coveredby a coastal land use plan.” (Opinion, at pp. 22-23, andfn. 13.) OF The Opinion Conflicts with California Native PlantSociety As noted above, the Council’s approval of the Project included the approval of a zoning amendment, a tentative map, and a development agreement. A key prerequisite for approvals such astheseis that they must be consistent with the general plan, and in fact the Council made findings that eachofthese actions wasconsistent with the City’s General Plan. (See Gov. Code § 65860 and AR 1.5:520 [(re)zoning]; Gov. Code § 66473.5 [tentative map] and AR 1.5:594; Gov. Code § 65867.5(a) and AR 1.5:626 [development agreement].) The City’s LandUse Elementofthe voter-approved GeneralPlan Update imposed a “coordination” requirement on either any acquisition of Banning Ranchforopen space [LU 6.3] or development ofBanning Ranch as a residential village [LU 6.4, emphasis added.]: “LU 6.5.6 Coordination with State and Federal Agencies Work with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/orrestored and those on which development will be permitted.” (AR 10:26309-26310, bold in original.) 24 Thetrial court determined that the City had failed to work with the Coastal Commissionandrelied onthe holding inNativePlant. However, faced with this holding, the Opinion is forced to reject Native Plantin orderto find the City compliant with its General Plan: “...we acknowledge that Native Plant is not easily distinguished. Thus, to the extent the holding of Native Plant applies to this case, we reject its reasoning as incompatible with our deferential review of the City’s legislative acts.” (Opinion,at p. 26.) In Native Plant, the local agency appealed the decision ofthetrial court determining that the city had violated the Planning and Zoning Law byfailing to work with a federal regulatory agencyas requiredbythecity’s generalplan. (Native Plant, supra, 172 Cal.App.4th at p. 608.) The City ofRancho Cordova approved an EIR that concludedthe vernal pool impacts would be mitigated to less than significant levels, but no proposed mitigation site was identified, (id. at pp. 610-612.) U.S. Fish and Wildlife complainedthat the mitigation measures were inadequate. (/d. at pp. 611-612.) Petitioner California Native Plant Society sued, claiming that the city violated its own general plan’s policies. (/d. at p. 613.) Thenatural resources elementofthe city’s general plan included Policy NR.1.1, requiring the city to “[p]rotect rare, threatened, and endangered 25 species and their habitats in accordance with State and federal law.”(Id. at p. 635.) To effectuate this policy, Action NR.1.1.3 of the general plan provided that: “[a]s part of the consideration of development applications for individual Planning Areas containing habitats that support special-status plant and animal species that are planned to be preserved, the City shall require that these preserved habitats have interconnections with other habitat areas in order to maintain the viability of the preserved habitat to support the special-status speciesidentified. The determinationofthe design and size of the ‘interconnections’ shall be made bytheCity, as recommended by a qualified professional, and will include consultation with the California Department of Fish and Game and U.S. Fish and Wildlife Service.” (Id. at p 635, emphasis added.) To implement Policy NR.1.1.1, the city’s general plan also included Action NR.1.7.1, directing that: “[flor those areas in which special-status species are foundorlikely to occur or where the presence ofspecies can be reasonably inferred, the City shall require mitigation ofimpacts to those species that ensure that the project does not contribute 26 to the decline of the affected species populations in the region to the extent that their decline would impacttheviability of the regional population. Mitigation shall be designed by the City in coordination with the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG), and shall emphasize a multi-species approach to the maximum extent feasible.” (/d.) Onappeal, the general plan consistency issue turned on the definition of the word “coordinate,” which the court discussed at length and is summarized below: “The City argues that to ‘coordinate’ means “to ‘negotiate with others in order to work together effectively,’” and “[t]he City satisfied its obligation oftrying to work together with [the Service]”by “solicit[ing], carefully consider[ing], and respond[ing] to comments from [the Service].” “Althoughthe City suggests ‘coordination’ is synonymous with ‘consultation’—and therefore the City satisfiedits “coordination” obligation underthe general plan at the sametimeitsatisfiedits “consultation”obligation underthe plan—thatis not true. While the City could “consult” with the Service bysoliciting and 27 considering the Service's comments onthe draft EIR, the City could not “coordinate” with the Service by simply doing those things.” “Unlike the City, we do notread this “coordination” requirement as “requir[ing] the City to subordinateitself to state and federal agencies by implementing their comments and taking their direction.” At the same time, however, we cannot reasonably deem this “coordination” requirement satisfied by the mere solicitation andrejection of input from the agencies with which the City is required to coordinate the design of mitigation measuresfor the Project.” (Native Plant, supra, 172 Cal.App.4th at pp. 641-642.) In summary, Native Plant held the generalplan's “coordination” policy meant the city had to actually “work with” those agencies and not merely “consult” with them, and becausethecity did not work with them,its approval of the project was inconsistentwith its general plan.(Id. at pp. 640-642.) Bythe Opinion’s own language,“...[T]he City's level ofinteraction thus far with the Coastal Commission was closer to consultation than coordination,as defined inNative Plant.” (Opinion,at p. 25, emphasis added.) But then the Opinion does an about-face and proclaims thatit is simply too 28 hard forjudges to determineifa local agency has “coordinated”with another regulatory agency underthe holding in Native Plant: “Perhaps a goodfaith negotiation between Rancho Cordova and the Service should have occurred. Perhaps a minimum number ofhours should have been devoted by Rancho Cordova toward reaching consensus with the Service. Perhaps the project developers should have been required to meet with the Service — prior to submitting their project to Rancho Cordova. These might be good or bad ideas. But none of them werein the general plan. And any other specific requirementthetrial court might have tried to impose would likewise by necessity be designed out of whole cloth.” (Opinion,at p. 27.) Despite the fact that courts makelife-altering and evenlife-and-death decisionsdaily, these same courts cannotbe called uponto evaluate a local agency’s “coordination” efforts because, according to the Opinion,that is “micomanage[ing].” (Opinion,at p. 28.) Unlike the Court ofAppealhere,the trial court seemed to have noproblem in explaining to the City what it needed to do. The writ of mandate issued bythetrial court explained that the City’s failure was in not “coordinat[ing] and work[ing] with the ... Coastal Commissionin identifying which wetlands andhabitats present on the Project 29 site would be preserved, restored or developed, prior to your approvalofthe Project.” (Opinion,at pp. 27-28.) The Opinion tells us that “identifying which wetlands and habitats present on the Project site would be preserved” in coordination with the Coastal Commission is simply too much to understand. (Opinion,atp. 27.) After declaring its own inability to absorb the rather specific instruction made by thetrial court, the Opinion concludes that this must meanthatthe City is entitled to interpret “consultation”virtually any way its wants: “But the lack of specific guidance in the general plan indicates to us that it is unreasonableto find the City's view ofLU 6.5.6 to be arbitrary.” (Opinion,at p. 28.) While Native Plant stands for the proposition that the word “coordination”has meaning beyond“consultation,” the Opinion standsfor the proposition that “coordination” means whatthe City says its means. The Opinionalso ignores this Court’s mandate that courts give effect to the plain text of a city’s general plan and not rewrite it to conform to an assumedintent not apparentin its language. (Lesher, supra, 52 Cal.3d,at p. 543; see also DiamondMultimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047 [where statutory language“is clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulgein it.’’].) 30 The Opinion circumvents this stricture by claiming “LU 6.5.6 is vague and ambiguous—the Conservancy’s position depends on inferences madeafter considering multiple sections ofthe general plan.” (Opinion, at p. 26.) Butif this wastrue, then LU 6.5.6’s context and purposeis key to interpretingit: “In interpreting a statute, we apply the usual rules of statutory construction. “We begin with the fundamentalrule that our primary task is to determine the lawmakers'intent. [Citation.] ... To determine intent, ‘“The court turnsfirst to the words themselves for the answer.”” [Citations.] ‘If the language is clear and unambiguousthere is no need for construction, noris it necessary to resort to indicia ofthe intent of the Legislature (in the case of a statute) ....’” (Delaney v. Superior Court (1990) 50 Cal. 3d 785, 798.) We give the languageofthestatuteits ‘usual, ordinary import and accordsignificance, ifpossible, to every word, phrase and sentencein pursuanceofthe legislative purpose. A construction making some words surplusageis to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose....”” (Kane v. Hurley (1994) 30 Cal.App.4th 859, 862.) Given that the exact language of LU 6.5.6 reads, “[wlork with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/orrestored andthose on which developmentwill be permitted,” the General Plan’s intent is even more clear and unambiguous than the “coordination”discussed in Native Plant. (Opinion,at p. 7.) 31 D. The Opinion Rejects Fundamental CEQAPrinciples The Opinion rejects four fundamental tenets of the California EnvironmentalQualityAct (“CEQA”). (Pub. Resources Code § 21000,etseq.) First, like the Coastal Act, CEQA mandates a collaborative effort between a lead agency and state agencies in preparing an environmental impact report (“EIR”) for a proposed project. (Cal. Code Regs., tit. 14 § 15050.) Here, the City ofNewport Beach(“City”) prepared an EIR for a massive proposed project on a 400-acre site. When Coastal Commission staff biologists reviewed the EIR they foundit failed to identify any probable ESHAonthesite and offered to assist the City in identifying it. The Opinion held CEQAdid not require the City to work with Coastal Commissionstaffsince “an ESHA determinationis a legal determination.” (Opinion, at p. 29.) Second, CEQAis a sunshine law requiring proceduralrigor, and the Legislature has declared “that noncompliance with its information disclosure provisions which precludes relevant information from being presentedto the public agency”mayconstitute a prejudicial abuseofdiscretion. (Pub. Resources Code § 21005,subd. (a).) This Court has affirmed such compliance means“an agency mustuseits best efforts to find out and discloseall that it reasonably can” when preparing an EIR. (Cal. Code Regs., tit. 14 § 15144.) A biological study prepared by the project applicant found ESHA throughoutthe site and submitted that study to the City. The City initially posted this study onits 32 website. However, the EIR the City later prepared for the project never mentioned the study or the acres of ESHAit found onthesite, and the study vanished not only from the City’s website but fromits files on the project. The Opinion impairs CEQA’sbasic procedural requirements, permitting the denial of information essential to an educated decision-making process. Despite insisting that the Banning Ranch EIR was adequate,the City cannotget around the fact that it made key project documents vanish. Third, and related to the second, the Opinion found the study’s disappearance and the EIR’s failure to mention it did not violate CEQA because the EIR contained 625 pages of subsequentbiological studies that were “longer and more detailed”than the missing study butfailed to identify potential ESHA. (Opinion, at pp. 12-13.) In so holding, the Opinion rejects CEQA’s basic principle that the EIR’s fundamental purpose is to be an informational documentthe public can understand. (Cal. Code Regs., tit. 14, § 15001, subd. (c), and Cal. Code Regs., tit. 14, § 15121, subd. (a).) This is why CEQArequires EJRsto be “analytic and not encyclopedic,” normally less than 300 pages for major projects, written in plain language the public can understand,andto avoid highly technical andspecialized analysis. (Cal. Code Regs., tit. 14, §§ 15140-15141.) In essence, the Opinion holds an EIR can dispense with telling the public “there is an elephant in the room” and say instead “there is a large terrestrial quadrupedal mammal of the genus 33 Luxodonta in the confines of an area enclosed within four walls.” This is contrary to CEQAand45 years of CEQAcase law. Fourth, CEQArequires mitigation measures to be fully enforceable by (amongother things) incorporating those measuresinto a plan. (Pub. Resources Code § 21081.6, subd. (b).) In accordance with that requirement, the City incorporated specific mitigation measures into its General Plan Update requiring it to identify and avoid potential environmental impacts resulting from the future development ofthe 400-acre Banning Ranchsite. One ofthose mitigation measures, labeled LU 6.5.6, required the City to work with federal andstate agenciesto parse from any future development’s footprint “wetlands and habitats to be preserved and/or restored” before the City permitted that development. According extreme deferenceto the City, the Opinion found the City’s refusal to work with the Coastal Commission in identifying ESHA before permitting the site’s development was reasonable. It did so by construing the General Plan’s LU 6.5.6 notas the mitigation measure the City previously claimedit was but merely “‘a helpful reminder.” (Opinion,at p. 22.) The Opinionalsoerrs in its failure to recognize that LU 6.5.6 is much more than a “helpful reminder” from the City—-the City putit in the General Plan Update as a CEQA mitigation measure. Public Resources Code 34 section 21081.6(b) requires all public agencies to “provide that measures to mitigate or avoid significant effects on the environmentare fully enforceable 34 through permit conditions, agreements, or other measures.” When it comesto apublic project such as a general plan, section 21081.6(b) allows cities and counties to incorporate those mitigation measuresinto the planitself. A review ofthe EIR the City prepared for its General Plan Update reveals this is exactly what the City did: Banning Ranch could either be restored and preserved as open space (the priority use), or be developed as a mixed- density residential village. If developmentoccurs, policies in the proposed General Plan Update would ensure compatibility between proposed uses, on-site open space areas, and the adjacent existing residential uses. Policies LU 6.5.1 through 6.5.6 pertain to both land use options for Banning Ranch. These policies help ensure that either developmentoption wouldresult in compatibility with adjacent uses. (AR 10:23151-23152; emphasis added.) 35 Lest there be any question that LU 6.5.6 and similar policies constituted CEQA mitigation measures incorporated into the General Plan Update, the EIR assured the public that those “[pJolicies stipulate that any development would have to be located and designed to protect views, the bluffs, natural drainage, and importanthabitat,” and in responding to public comments on the EIRthe City stated that those policies “provide for protectionsofthe resources that are considered by state andfederal agencies as rare, endangered, or otherwise significant.” (AR 10:22892, 26013; emphasis added.) By classifying the General Plan’s incorporated mitigation measures merely as optional recommendations rather than binding obligations, the Opinion upsets longstanding CEQA principles and sows confusion into previously settled law. CONCLUSION Review of the important questions here is necessary to resolve the conflict between the Opinion and Douda as to whether an ESHAdesignation is a purely legal determination that a local government cannot make underthe Coastal Act if it lacks a Coastal Commission-designated local coastal plan, and whether a local government must collaborate with the Coastal Commission formulating a local coastal program. Review is also necessary because the Opinion expressly rejected the holding in Native Plant as applied 36 to identical facts, and therefore a guidance is neededto resolve the split between the Third and Fourth District Courts of Appeal. Finally, review is warranted given the Opinion’s rejection of several key procedural and substantive requirements of CEQA. Dated: June 29, 2015 Respectfully submitted, LEIBOLD McCLENDON & MANN,P.C. NZorney for Petitioner BANNING RANCH CONSERVANCY CERTIFICATION OF WORD COUNT: In accordance with California Rule ofCourt, Rule 8.204(d)(1),I certify that this Petition contains 7399 words, exclusive of this certificate and the tables ofcontents andauthorities, according to the word countfunction ofthe word processing program I usedto prepareit. s M. Johnson 37 EXHIBIT A (Cal. Rules of Court, rule 8.204(d).) COURTOF APPEAL- 4TH DIST DIV 3 FILED May20, 2015 Deputy Clerk: D. Jackson CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT DIVISION THREE BANNING RANCH CONSERVANCY, Plaintiff and Appellant, v. CITY OF NEWPORT BEACHetal., Defendants and Appellants; NEWPORT BANNING RANCHLLCet al., Real Parties in Interest and Appellants. G049691 (Super. Ct. No. 30-2012-00593557) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert Louis Becking, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed. Office of the City Attorney for the City ofNewport Beach, Aaron Harp, City Attorney and Leonie Mulvihill, Assistant City Attorney; Remy Moose Manley, Whitman F. Manley and Jennifer S. Holman for Defendants and Appellants. Leibold McClendon & Mann and John G. McClendonfor Plaintiff and Appellant. Manatt, Phelps & Phillips, Susan K. Hori and Benjamin G. Shatz for Real Parties in Interest and Appellants. Kamala D.Harris, Attorney General, John A. Saurenman,Assistant Attorney General, and Jamee Jordan Patterson, Deputy Attorney General, for California Coastal Commission as Amicus Curiae. Banning Ranchconsists of approximately 400 acres of largely undeveloped coastal property, with active oilfield facilities and operations dispersed thereon. Project proponents. seek to develop one-fourth of Banning Ranchfor residential and commercial purposes, and to preserve the remaining acreage as open space and parks, removing and remediating muchofthe oil production equipment and facilities (the Project). The City ofNewport Beach andits City Council (collectively the City) approved the Project. Banning Ranch Conservancy(the Conservancy), “a community-based organization dedicated to the preservation, acquisition, conservation and managementofthe entire Banning Ranchas a permanentpublic open space, park, and coastal nature preserve,” filed a mandamusaction against the City. Thetrial court agreed with the Conservancy’s claim that the City violated the Planning and Zoning Law (Gov. Code, § 65000 et seq.) and its own general plan by its alleged failure to adequately coordinate with the California Coastal Commission before its approval of the Project. On the other hand, the court rejected the Conservancy’s claim that the City violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) by failing to identify in the environmental impact report (EIR) the “environmentally sensitive habitat areas” 1 . ae . Project proponentsare realparties in interest Newport Banning Ranch LLC, Aera Energy LLC, and Cherokee Newport Beach, LLC. 2 (ESHAs) — a defined term in the California Coastal Act of 1976 (Coastal Act; Pub. Resources Code, § 30000 et seq.). All interested parties appealed. We agree with the court’s CEQAruling but conclude the court erred by finding the City violated its general plan. We therefore reverse the judgmentto the extent it provides for mandamusrelief to the Conservancy. FACTS. Wedescribein this section: (1) the City’s generalplan,as it pertained to Banning Ranch;(2) the City’s coastal land use plan, which, by its own terms, did not apply to Banning Ranch; (3) the proposed Project; (4) the draft EIR; (5) The City’s response to comments andfinal EIR; (6) the City’s approval of the Project; and (7) the proceduralhistory of this action. Keep in mindthe primary legal disputes: (a) What actions were required of the City vis-a-vis the Coastal Commission,prior to Project approval, regarding the decision whether to develop, preserve, or restore particular portions of Banning Ranch; and (b) Was the City required to designate ESHAsin the EIR? The City’s General Plan, as it Pertains to Banning Ranch “Each planning agency shall prepare and the legislative body of each county andcity shall adopt a comprehensive, long-term general plan for the physical ; Collectively, the parties’ thorough, well-researched “briefs” exceed 300 pages. The City’s appendix features 1,489 pages and the Conservancy’s appendix adds 98 pages. The electronic administrative record totals a whopping 49,046 pages. We have striven to limit our recitation offacts to those strictly necessary to the analysis of the issues before us andto refrain from discussing unnecessary background material and the parties’ arguments in the alternative. We assure the parties, however, that we appreciate their diligence in bringingall potentially relevant materials and issues to our attention. developmentof the county or city, and of any land outside its boundaries which in the planning agency’s judgmentbearsrelationto its planning.” (Gov. Code, § 65300.) The generalplan adoptedby legislative body is “a “constitution”for future development’ [citation] located at the top of‘the hierarchy of local government law regulating land use’ [citation].” (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 773.) “The planning law . .. compels cities and counties to undergothe discipline of drafting a master planto guide future local land use decisions.” ([bid.) The City’s 2006 general plan recognizes Banning Ranchasa distinct “[dlistrict” within its “sphere of influence.” The general plan acknowledges both the damage done by longstanding (“at least 75 years”) use of Banning Ranchforoil extraction activities and the value of Banning Ranchas wildlife habitat and open space resourcefor citizens. The environmental value ofthe “diverse habitats” contained within Banning Ranch varies. Some of Banning Ranch(particularly the northwestern portion) has a “high biological resource value”; other segments are of lesser environmental importance. The general plan notes resident support for the preservationofall of Banning Ranchas openspaceor, alternatively, the limited development of Banning Ranchifnecessary “to help fund preservation of the majority of the property as open space.” A highlighted “Policy Overview”section states as follows: “The General Plan prioritizes the acquisition of Banning Ranchas an open space amenity for the community and region. Oil operations would be consolidated, wetlands restored, nature education and interpretive facilities provided, and an active park developed containing playfields and otherfacilities to serve residents of adjoining neighborhoods. [§] Should the , The vast majority of Banning Ranch (361 acres) is within the jurisdiction of unincorporated Orange County; the remaining 40 acres are within the City. Nonetheless, all of Banning Ranchfalls within the City’s “‘sphere of influence’” and is therefore the appropriate subject of the City’s general plan. (See Merritt v. City ofPleasanton (2001) 89 Cal.App.4th 1032, 1034; Gov. Code, §§ 65300, 65859, subd. (a).) 4 property not be fully acquired as open space, the Plan provides for the developmentof a concentrated mixed-use residential village that retains the majority of the property as open space. ... While the Plan indicates the maximum intensity of developmentthat would be allowed on the property, this will ultimately be determined through permitting processesthat are requiredto satisfy state and federal environmental regulatory requirements.” Building onits stated policy preferences, the general plan identifies two alternative land use “Goall[s].”" Thefirst goal, “LU 6.3,” is “[p]referably a protected open space amenity, with restored wetlands and habitat areas, as well as active community parklandsto serve adjoining neighborhoods.” The second goal, “LU 6.4,”is a backup option: “If acquisition for open spaceis not successful, a high-quality residential community with supporting uses that provides revenue to restore and protect wetlands and important habitats.” Eachalternative goal features a “Policies”section beneath the goal. The policies in support of Goal LU 6.3 are simple. Thefirst, described as a “LAND USES” policy and entitled “Primary Use,” declares the intended use of Banning Ranchto be open space. A “STRATEGY”listed underneathis entitled “Acquisition for Open Space” and announcessupport for the acquisition of Banning Ranchbythe City through a variety of possible funding mechanisms. Both the land uses and strategy sections cross-reference ; . . 6 . ; several implementation actions, described elsewherein the general plan. " According to the general plan, “Goals describe ideal future conditions for a particular topic, such as for Banning Ranch . ... Goals tend to be very general and broad.” ° According to the general plan, “Policies provide guidancetoassist the City as it makes decisions relating to each goal. Some policies include guidelines or standards against which decisions can be evaluated.” 6 ; . tg According to the general plan, “Implementation Actions identify the 5 The Policies listed beneath Goal LU 6.4 are more detailed. The “LAND USES”section entitled, “Alternative Use,” describes the limited developmentof a residential village, “with a majority of the property preserved as open space.” Next follows nine separate policies setting forth requirements pertaining to development density, capacity, design, and methods.’ A “STRATEGY”also requires “the preparation of a master developmentor specific plan for any development on the Banning Ranch specifying lands to be developed, preserved, andrestored, land uses to be permitted, parcelization, roadway andinfrastructure improvements, landscape andstreetscape improvements, development regulations, architectural design and landscape guidelines, exterior lighting guidelines, processes for oil operations consolidation, habitat preservation andrestoration plan, sustainability practices plan, financial implementation, and other appropriate elements.” Various implementation actions were also referenced throughout this section.” The general plan then announces“Policies Pertaining to Both Land Use Options (Goals 6.3 and 6.4).” Thefirst three policies pertain to “PERMITTED USES” and discuss oil operations, an active community park, and the restoration of wetlands and specific steps to be taken by the City to implementthe policies. They may include revisions of current codes and ordinances, plans and capital improvements, programs, financing, and other measures that should be assigned to different City departments.” ’ Specific limits on development include a maximum of 1,375 residential units, a maximum of 75,000 square feet of retail commercial uses, and a maximum of 75 roomsin facility offering overnight accommodations. ° In addition, section 10.9 of the natural resources element of the general plan (entitled “Development on Banning Ranch”), provides: “Protect the sensitive and rare resources that occur on Banning Ranch. If future developmentis permitted, require that an assessment be prepared by a qualified biologist that delineates sensitive and rare habitat and wildlife corridors. Require that development be concentratedto protect biological resources andcoastal bluffs, and structures designedto not be intrusive on the surrounding landscape. Require the restoration or mitigation of any sensitive or rare habitat areas that are affected by future development.” 6 wildlife habitat. The fourth and fifth policies pertain to “DESIGN AND DEVELOPMENT”in connection with the preservation of environmental resources and the public’s views. The focus of this appeal as it relates to the generalplan is the final section of the land use discussion of Banning Ranch,listed under the “Policies Pertaining to Both Land Use Options,” but designated specifically as a “STRATEGY,”a term notdefined in the general plan. We quote this section in its entirety. “LU 6.5.6 [§] Work with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which developmentwill be permitted.” The citations at the end of the quote refer to Implementation Actions 14.7 and 14.11, which arelisted elsewhere in the general plan. Implementation Action 14.7 is entitled “Coordinate with the California Resources Agency, Department of Fish and Game,” and describes various issues on which the City should either “consult[],” “support,” or “cooperate with” this agency. Implementation Action 14.11 is entitled, “California Public Utilities Commission” (PUC)andstatesthat the City “shall work with the PUC in obtaining funding and implementing the undergrounding of remaining overheadutilities.” Implementation Action 14.6 is conspicuousby its absence from LU 6.5.6 and the rest of the section of the general plan pertaining specifically to Banning Ranch. Implementation Action 14.6 is entitled “Coordinate with California Coastal Commission.” Its text reads: “The California Coastal Commissionis responsible for the implementation of the California Coastal Act of1976. As described [elsewherein the general plan], the City’s Local Coastal Program’s (LCP) Land Use Plan (CLUP) had beencertified at the time of the adoption of the updated General Plan. The City shall work with the Coastal Commission to amend the CLUPto be consistent with the General Plan and pursuecertification of the Implementation Plan. The City shall ensure that on certification, applications for development shall be reviewed by the City for consistency with the certified LCP and California Coastal Act of1976.” 7 The City’s Coastal Land Use Plan, Which Specifically Excludes Banning Ranch Pursuant to the Coastal Act, the Coastal “Commission is required to protect the coastal zone’s delicately balanced ecosystem.” (Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 506 (Bolsa Chica).) Banning Ranchis within the “*TcJoastal zone’” (Pub. Resources Code, § 30103) and is therefore subject to the Coastal Commission’s jurisdiction. Amongother things, the Coastal Act “provides heightened protection to” ESHAswithin the coastal zone. (Bolsa Chica, supra, 71 Cal.App.4th at p. 506.) ““Environmentally sensitive area’ means any area in which plant or animallife or their habitats are either rare or especially valuable because oftheir special nature or role in an ecosystem and which could beeasily disturbed or degraded by humanactivities and developments.” (Pub. Resources Code, § 30107.5.) “Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependenton those resourcesshall be allowed within those areas.” (Pub. Resources Code, § 30240, subd.(a).) “Development in areas adjacent to environmentally sensitive habitat areas . . . shall be sited and designed to prevent impacts which wouldsignificantly degrade those areas, and shall be compatible with the continuanceofthose habitat . . areas.” (Pub. Resources Code, § 30240, subd.(b).) “A combination of local land use planning procedures and enforcement to achieve maximum responsivenessto local conditions, accountability, and public accessibility, as well as continued state coastal planning and managementthrougha state coastal commissionare relied upon to insure conformity with the provisionsofthe act [citation]. Therefore, all local governments lying in wholeorin part within the coastal zone had to prepare and submit to the Commissiona local coastal plan (LCP) [citation]. The LCP consists of a local government’s ‘(a) land use plans, (b) zoning ordinances, (c) zoning district maps, and (d) within sensitive coastal resources areas, other implementing actions, ....’ [Citation.] The precise content of each LCP is determined 8 by the local governmentin full consultation with the Commission [citation] and must meet the requirements of, and implementthe provisions andpolicies of [the act] at the local level [citation].” (Yost v. Thomas (1984) 36 Cal.3d 561, 566.) In 2005, the City obtained Coastal Commission approvalof its coastal land use plan (Pub. Resources Code, § 30108.5) — a keyfacetofits local coastal program (Pub. Resources Code, § 30108.6). The City has not submitted an implementation plan to the Coastal Commission, however, so it was not able to issue coastal development permits on its own. Hence, all new applications for coastal development permits must be processed by the Coastal Commission. Despiteits inability to issue coastal developmentpermits, “[t]he City reviews pending developmentprojects for consistency with the General Plan, Zoning regulations, and the [coastal land use plan], before an applicant mayfile for a [coastal development permit] with the Coastal Commission.” And the City’s coastal land use plan, Policies 4.1.1-1, states: “Define any area in which plant or animallife or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by humanactivities and developments as an [ESHA].” The City’s coastal land useplansets forth criteria for determining if a habitat is an ESHA,andincludes a presumption that habitat meeting the prescribed criteria is ESHA, subject to rebuttal by “site-specific evidence.” Banning Ranch, however,is specifically excluded from the scope ofthe CLUP. “A Deferred Certification Area . . . refers to an area where both the land use plan and implementing actions plan have been deferred to somefuture date in order to avoid delay in certifying the balance of the [coastal land use plan]. The Coastal Commission retains permit jurisdiction in all deferred certification areas. [{]] Newport Banning Ranch is a [Deferred Certification Area].” The City’s coastal land useplanpolicies “[d]esignate the Banning Ranch property as an area of deferred certification until such time as the future land uses for the property are resolved and policies are adopted to address the 9 future of the oil and gas operations and the protection of the coastal resources on the property.” In sum, the City would ordinarily be obligated underits coastal land use plan to identify ESHAsin its review of a coastal project. But the City’s coastal land use plan explicitly excludes Banning Ranch from its scope. The City Does Not Acquire Banning Ranch; Instead, Development is Proposed Asone can well imagine, 400 acres of coastal property in Orange County does not come cheap. A pricing study commissionedbythe City indicated it could take between $184 million to $211 million to acquire Banning Ranch, although the amount might be reduced to a range of $138 million to $158 million if the entire property were purchasedin a single transaction. These purchaseprices would notincludethe cost ofoil field clean up and remediation. After efforts to obtain funding from a variety of sources foundered, the City ultimately concluded that acquisition of Banning Ranchfor preservation as open spaceinits entirety (i.e., the preferred outcomespecified in the general plan) wasinfeasible. Parallel with the City’s exploration of the possibility of acquiring Banning Ranch, a development proposal was formally submitted to the City in August 2008.” The proposalprecisely tracks upper limits for developmentset forth in the generalplan (e.g., numberofresidential units, amount of commercial space) and indicatesthat the majority of Banning Ranchwill be preserved as open space. The proposal includes a planned community development document, designed to address the City’s strategy to develop a master plan for Banning Ranch’s development. ° The general plan endorses the dual-track pursuit of development “entitlement[s] and permits for a residential village during the time allowed for acquisition as open space.” 10 The proposal “documented and mappedthe extensive field survey work that the environmental team has done on potential special status habitats (potential ESHA), as demonstrated in the Biological Technical Report.” The referenced biological technical report, prepared by Glenn LukosAssociates, Inc., identifies “potential ESHA in accordance with the City’s Coastal Land Use Policies.” A map of Banning Ranch identifying potential ESHA and non-ESHAareas wasalso included with the report. Draft Environmental Impact Report “With narrow exceptions, CEQA requires an EIR whenevera public agency proposes to approveorto carry out a project that may havea significant effect on the environment.” (Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1988) 47 Cal.3d 376, 390 (Laurel Heights).) “The Legislature has madeclear that an EIR is an ‘informational document’ andthat ‘(t]he purpose of an environmental impact report is to provide public agencies and the public in general with detailed information about the effect which a proposedprojectis likely to have on the environment; to list ways in which the significant effects of a project might be minimized; and to indicate alternatives to such a project.” (/d. at p. 391.) “The EIR is the primary means of achieving the Legislature’s considered declaration that it is the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmentalquality of the state.’ [Citation.] The EIRis therefore ‘the heart of CEQA.’” (id.at p. 392.) " This 2008 “draft” biological technical report was not included in the administrative record prepared by the City. The court granted the City’s motionto strike the documentfrom the record, finding fault with the Conservancy’s tardy attemptto lodge this documentrather than filing a timely motion to augmentthe administrative record. Wesidestep the issue of whether the court’s ruling was proper by considering this document to be part of the record. In our view,the inclusion of this documentin the record makesno difference to the outcomeofthis appeal. Moreover, by considering the excluded document, we avoid the appearancethat the City gained an advantage in this case by excluding (whetherintentionally or unintentionally) a document from the administrative record. 11 “Under CEQA,the public is notified that a draft EIR is being prepared [citations], and the draft EIR is evaluated in light of comments received. [Citations.] The lead agency then prepares a final EIR incorporating comments on the draft EIR and the agency’s responsesto significant environmental points raised in the review process. [Citations.] The lead agency mustcertify that the final EIR has been completed in compliance with CEQAandthat the information in the final EIR was considered by the agency before approving the project. [Citation.] Before approving the project, the agency mustalso find either that the project’s significant environmental effects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project’s benefits.” (Laurel Heights, supra, 47 Cal.3d at p. 391, fn. omitted.) A notice of preparation of an EIR concerning the Project was distributed in March 2009 to affected individuals and agencies, including the Coastal Commission. After years of study and preparation, a 1,400-page draft EIR, with 5,560 additional pages in the appendices, was completed in September 2011. The draft EIR devotes approximately 625 pages (including the biological technical report as an appendix) to the analysis of biological resources at Banning Ranch. This analysis is based on biological surveys conducted by BonTerra Consulting from 2008 through 2011 and by Glenn Lukos Associates,Inc.(i.e., the same firm that submitted the biological technical report in 2008), from 1998 to 2002 and 2006 to 2011. The material in the draft EIR is longer and moredetailed than the 2008 draft biological technical report. It breaks down to the hundredth of an acre the precise vegetation types at Banning Ranch.It features multiple, color-coded mapsidentifying the various forms of vegetation. The analysis likewise bores into details concerning the animallife in Banning Ranch,using text and mapsto provide an in-depth view of wildlife at Banning Ranch. Andthe draft EIR analyzes the effects of the Project on habitat, special status species, and other biological resources, using charts and mapstoillustrate the impacts described in the textual analysis. 12 The draft EIR also describes the development proposal in depth, dividing the proposed uses of Banning Ranch downto the tenth of an acre. It specifies whichoil production facilities and infrastructure would be removed, and which areas would continue to be used for oil production “on an interim basis.” It pinpoints the areas of Banning Ranchthat would be used as natural open space, public parks, residences, and mixed-use. It provides for circulation and parking improvements. Maps of Banning Ranchillustrate the planned development with color-coding and detailed labeling. In discussing the Coastal Act, the draft EIR states: “The Project site is within the boundary of the Coastal Zone. ... The Project is considered consistent with the applicable land use policies of the... Coastal Act... .” With regard to the Coastal Act’s general rule prohibiting development of ESHAs, “[s]ection 4.6.4 of this [draft EIR] has identified and mapped the vegetation types and special status species occurrences knownto occur within the Project Site. The Project and associated mitigation measures avoid, minimize, and compensate for the placement of development within these areas to prevent a substantial degradation of these areas or significantly disrupt habitat values. The determination of what areas would be regulated as ESHA would be made by the Coastal Commissionas part of the [coastal development permit] process for the Project.” Thus, the draft EIR does not actually label sectors of Banning Ranch as ESHAorpotential ESHA. Instead, after noting Banning Ranch’sstatus as a deferred certification area within the City’s coastal land useplan, the draft EIR defers to the Coastal Commission the determination of whether and to what extent ESHAsare present at Banning Ranch. The draft EIR repeatedly notesthat the Project cannot go forward without a coastal development permit from the Coastal Commission, something the City could not provide at the Banning Ranchsite. Indeed, the draft EIR acknowledgesthat multiple other federal, state, and local agencies will need to approvethe Project before it can proceed. 13 Response to Comments and Final Environmental Impact Report In March 2012, the final EIR was produced, collecting comments, responding to comments,issuing clarifications and revisions, and adopting additional appendices. These new components added approximately 2,200 pagesto the draft EIR, bringing the EIR grandtotal to over 9,000 pages. We focussolely on those aspects pertinent to the issues raised in this appeal. Negative comments concerning the draft EIR’s failure to designate ESHAs were received from both the Conservancy’s members and Coastal Commission staff. We highlight several of the objections raised in the Coastal Commission’s letter. Theletter first objects to the procedure contemplated by the City, recommending that the City consider the Project “in the context of a Local Coastal Program review”rather than the current plan to submit the Project for a coastal development permit without having undergone the initial review. Noting “the scope and complexity of the proposed project,” the letter suggests the City’s proposed process would prove “unworkable.” Theletter requests “that the EIR process incorporate a determination ofprobable ESHA areas and their required buffers” and further requests that the Coastal Commission’sstaff biologists have the opportunity to review such designations prior to EIR finalization. Theletter opinesthat a “preliminary analysis” indicates the Project proposed in the draft EIR could not be compatible with the Coastal Act, in part because a planned “four lanearterial road : : : . : . 11 in the proposed location wouldresult in significant, unavoidable impacts to ESHA.” i . Le . The Conservancy suggests that the City’s motivation for declining to identify ESHAsin the draft EIR stemmed from its desire to build roads that would necessarily infringe on ESHAs. In February 2009 correspondence, Glenn Lukos Associates, Inc., noted that changes to the habitat restoration plan for Banning Ranch would be required asa result of “the proposed road circulation network requested by the City ...as a public benefit. ... [T]he changes associated with the Proposed Project would significantly impact scrub, wetlands, and riparian habitat that would be considered [ESHA] pursuant to the City’s Coastal Land Use Plan . . . Policies as well as the [Coastal Act]. Itis important to note that impacts to ESHAare prohibited . . . except for certain allowable uses, and the proposed [road] connectors would be problematic to the [Coastal 14 The City respondedto the critique that it should designate ESHAsaspart of the CEQAprocess. The “purpose of an EIRis to analyze the impacts of a proposed project on the physical environment. The Draft EIR analyzes the proposed Project and its impact on biological resources .... In so doing, the City has fulfilled its obligation under CEQAto analyze the significant impacts of a project on the physical environment. To what extent these areas constitute ESHA — a concept unique to the Coastal Act— is a finding within the discretion of the Coastal Commission,or a local agencyas part ofits local coastal program certification process. While the Draft EIR mustidentify a project’s impact on the environment, including biological resources such as sensitive species and sensitive native vegetation, it is not required to makea finding pursuantto the Coastal Act. That would be within the discretion and authority of the Coastal Commission when this Project comes before them. [{] For other coastal projects, the Coastal Commission has identified a variety of habitats and resources as ESHA whichinclude, but are not limited to, coastal bluff scrub, coastal sage scrub, riparian scrub, freshwater marsh, and habitat occupied by listed species. These habitats and resource, and manyothers, have been quantified, qualified, and graphically illustrated in the Draft EIR and supporting Biological Technical Report for the proposed Project. This technical information is available to the Coastal Commission for their consideration of ESHA in accordance with the Coastal Act.” In responseto criticism that it should apply its coastal land use plan in the draft EIR, the City explained that Banning Ranchisnot currently covered by the City’s coastal land use plan. “Consequently, the Applicant is proposing to apply for a Coastal Commission].” “The Proposed Project wouldinclude a north/south connection . . . that would cross througha large portion of project open space containing areas of ESHA as well as areas proposed for habitat restoration... .” The four lane arterial road extension is proposed as consistent with the Orange County Transportation Authority’s mapofarterial networks. Included in the EIR is an analysis of an alternative that excludes the disputed road extension. 15 Development Permit to implement its proposed Project. The Coastal Commission’s comments regarding the level of detail required for a Coastal Development Permit will be forwarded to the Applicant for its consideration in preparing its application to the Coastal Commission.” The City also acknowledged in an additional response to comments that the Coastal Commission hadalready “identified areas ofESHA onthe Project site” in an unrelated proceeding — a .21-acre portion and a .46-acre portion — butreiterated that “the Coastal Commission has not made an ESHA determination for the remainder of” Banning Ranch. In short, the City stands by the position taken in the draft EIR: it is unnecessary for the City (whether under CEQA,the Coastal Act, or its own coastal land use plan) to identify ESHAsin the EIR. Approvalofthe Project On July 23, 2012, the City held a public hearing on the Project. At the conclusion of the hearing, the City adopteda series of resolutions, which, taken together, amounted to approval of the Project. Amongotherthings,the resolutions: (1) certified the final EIR, (2) approved the Project’s master developmentplan (and related entitlement changes), (3) approved zoning changes to Banning Ranch,and (4) approved the development agreement between the City and Project proponents. The City found that the “Project would have direct and indirect impacts on habitat and special status species associated with oilfield remediation, grading, construction, and long-term use of the Project site. Grading activities could impact several sensitive natural communities on the Project site.” But the impact of the Project on the biological resources at Banning Ranch “is Less Than Significant as a result of the implementation” of mitigation measures. The City also foundthat the “Project is consistent with the goals and policies of the General Plan.” 16 Procedural History ofMandamus Action In August 2012, the Conservancypetitioned for a writ of mandate on the groundsthat the EIR waslegally inadequate and the City violated its own general plan by approving the Project. The Conservancy requested that the City’s approval ofthe Project be set aside and that the court order the City to comply withits legal obligations under CEQAand the Planning and Zoning Law. The court took the matter under submissionafter briefing and oral argument. It granted the petition for writ of mandate in part, based on its conclusion “that the General Plan Amendment implementing the Project, and the Projectitself, as approved,is inconsistent with the General Plan, particularly [land use policies] 6.3 and 6.4, and more specifically [land use policy] 6.5.6, in that the City failed to coordinate and work with the Coastal Commission in identifying which wetlands and habitats present in Banning Ranch wouldbepreserved, restored or developed,prior to its approval of the Project.” The court’s analysis on this point was driven by California Native Plant Society v. City ofRancho Cordova (2009) 172 Cal.App.4th 603 (Native Plant). The court deniedrelief to the Conservancy with regard to its CEQA allegations. The Conservancy’s primary argument was“that the City failed to identify potential ESHAsonthe Project site and deal with that potentiality in the EIR. [The Conservancy] uses that as a basis for arguing: 1) that the EIR did not properly describe the baseline; 2) that the EIR improperly deferred the identification and imposition of mitigation measures; 3) that the EIR did not contain a proper description of the Project; 4) that the EIR was based on incomplete data and analysis; 5) that the EIR had to be recirculated; and 6) that the EIR failed to adequately analyze alternatives.” The court cited Banning Ranch Conservancyv. City ofNewport Beach (2012) 211 Cal.App.4th 1209 (Banning Ranch J) in rejecting the notion that CEQA requires a city to predict in its EIR the ESHAsthat will be designated by the Coastal Commission in the future. 17 Judgment wasentered and a peremptory writ of mandate issued in January 2014. The writ of mandate stated in relevant part that the City “shall set aside and vacate all approvals relating to the Project except as to the approval of the environmental impact report and take no further steps toward approving or otherwise implementing the developmentof the Project site unless and until [the City] fully compl[ies] with Policy LU6.5.6 in accordance with this Court’s aforementioned determination.” DISCUSSION Consistency ofProject with General Plan “We review decisions regarding consistency with a general plan underthe arbitrary and capricious standard. These are quasi-legislative acts reviewed by ordinary mandamus, and the inquiry is whether the decisionis arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. [Citations.] Underthis standard, we defer to an agency’s factual finding of consistency unless no reasonable person could have reached the same conclusion on the evidence before it.” (Endangered Habitats League, Inc. v. County ofOrange (2005) 131 Cal.App.4th 777, 782.) ““It is, emphatically, not the role of the courts to micromanage these developmentdecisions.’ {Citation.] Thus, as long as the City reasonably could have made a determination of consistency, the City’s decision must be upheld, regardless of whether we would have madethat determinationinthefirst instance.” (Native Plant, supra, 172 Cal.App.4th at p. 638.) We review the City’s decision and donot defer to the trial court. (/d.at p. 637.) ” The Conservancy argues our level of deference to the City should be reduced because the City’s general plan was endorsed bythe voters in a referendum. A similar argument wasrejected, persuasively, in San Francisco Tomorrowv. City and County ofSan Francisco (2014) 229 Cal.App.4th 498, 515-516. 18 The primary general plan policy at issue is LU 6.5.6 (which can be described, consistent with the general plan, as a “policy,” a “strategy,” or both): “Coordination with State and Federal Agencies [{]] Work with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which developmentwill be permitted.” Also of note is LU 6.4, the alternative policy allowing development, pursuant to which the general plan requires “the preparation of a master developmentor specific plan for any development on the Banning Ranchspecifying lands to be developed, preserved, and restored... .” A master development plan was approvedby the City; this plan (among other documents) identifies lands to be developed, preserved, or restored as part of the Project. The Conservancy’s claim, accepted by the court, is that the City neither coordinated nor worked with the Coastal Commission (an “appropriate” state agency in LU6.5.6) to identify wetlands and other habitats to be preserved, restored, or developed. The Conservancyinsists that the only reasonable interpretation ofthe general plan is that the City must work with the Coastal Commission to decide the appropriate uses of habitats before Project approval. Recall that the general planstates, “Policies provide guidancetoassist the City as it makes decisions relating to each goal. Some policies include guidelines or standards against which decisions can be evaluated.” (Italics added.) The Conservancyasserts that LU 6.5.6 is just such a policy, and that the City’s processleading up to the approval of the Project fell short of what LU 6.5.6 required, thereby making the Project inconsistent with the general plan. By the City’s own admission, the Project has not yet received Coastal Commission assent. To the contrary, Coastal Commissionstaff in their commentsto the draft EIR criticized (at least based on their preliminary review of the Project) the City’s approach thus far(e.g., not analyzing the Project under the City’s coastal land use plan, not identifying ESHA in the EIR, and allowing road improvements through areas that include probable ESHA). 19 The City’s counterargument takes twotacks. First, the City marshals evidenceofits interactions with federal and state agencies. The City distributed a Notice of Preparation of an EIR to a lengthylist of state agencies concerned with land use issues at Banning Ranch,including the Coastal Commission. Several of these agencies, including the Coastal Commission, provided comments to the City concerning the draft EIR. The National Marine Fisheries Service, a federal agency, attended a scoping meeting early in the environmental review process and provided oral comments. The United States Army Corps of Engineers concurred with a determinationofits jurisdiction over certain wetlands at Banning Ranch. Consultation procedures under the Endangered Species Act were initiated with the United States Department of Fish and Wildlife. City staff members and consultants even met with Coastal Commission staff about the Project and responded in some measure to Coastal Commission concerns. An in-person meeting occurred on March 30, 2011 at which variousaspects of the proposed Project were discussed. In April 2011, instructions were providedto a biological resource consultant “to beef up” the EIR in some respect to address Coastal Commission concerns. Coastal Commission staff again met in person in 2012 with “Banning Ranchrep[resentatives] and advised them that we were notsatisfied by the response to our commentsin the [draft] EIR and advised them that they will need to fully address those comments if/when the project is submitted to the Commission. Since then, someofour staff including our staff biologists have had a staff visit and I believe they underscored the need for further study during thatsite visit.” Muchofthis evidence can fairly be characterized as compliance, in part, with LU 6.5.6. The City certainly worked with federal and state agencies, including the Coastal Commission, before approving the Project. But none of this evidence addresses the lack of coordination with the Coastal Commission prior to Project approval on the Project’s identification of habitats for preservation, restoration, or development. Instead, the record seemsclear that the Project’s choices as to habitat preservation, restoration, 20 and development were madebythe project proponents and the City. The Coastal Commission wascertainly put on notice that the Project had been proposed and that an environmental review process had beeninitiated. The Coastal Commission (throughits staff) took advantage of the opportunity to comment on the draft EIR and even met with Project proponents and the City on a few occasions. But it cannotfairly be said that the City worked with the Commission prior to Project approval to identify habitats for preservation, restoration, or development. To this point, the City’s second contention is that the Conservancy’s interpretation of LU 6.5.6 is not the only reasonable interpretation, and that this court is required to defer to the City’s interpretation of its own general plan in making its consistency finding. To wit, the City suggests compliance with LU 6.5.6is not limited to its conduct prior to Project approval. LU 6.5.6 does not say that the Coastal Commission (or its staff) must sign off on the land uses contemplated by the Project before the City approvesthe Project. Instead, LU 6.5.6 asserts a vaguestrategy to “work with”all pertinentstate and federal agencies. There is no temporal cut off for the completion of this vaguestrategy. The City asserts its process is perfectly legitimate under LU 6.5.6: (1) “{w]ork with”all interested agencies to the extent of notifying them ofthe Project, meeting with agency representatives upon request, and taking their views into consideration during the Project review process; (2) approve (ornot) the Project after completing CEQA requirements and measuring the Project for consistency with the general plan; and (3) continueto “[w]ork with” agencies from whom additional approvals and permits are necessary, including the Coastal Commission, which might determine that ESHA at Banning Ranchrequires the Project to be altered. According to the City,it wasfree under LU 6.5.6 to reject the preferred procedure suggested by the Coastal Commission’s commentletter, i.e.: (1) review the Project underthe City’s coastallocal use plan, notwithstanding Banning Ranch’s exclusion(as a deferred certification area) 21 from this plan; (2) identify in the Project planning documents all ESHAs within Banning Ranch; (3) eliminate any developmentthat would affect an ESHA;(4) continue coordinating with Coastal Commissionstaff until the Project was up to snuff in the Coastal Commissionstaffs opinion; and (5) approve(or not) the Project. In addition to its repeated acknowledgementthat the Coastal Commission must provide a coastal development permit before the Project proceeds, the City also cites various mitigation measures included in the EIR asproofthatit intends to “[w]ork with” the Coastal Commission in the future. Each of these measures references individual federal and state agencies (including the Coastal Commission) that must approve of the implementation plan for these measuresto go intoeffect. Our review of the general plan and the record in this case leads us to concludethat the City’s interpretation of the process contemplated by LU 6.5.6 andits ensuing consistency finding are reasonable. This “strategy” (or policy) is simply too vague on its face to impose a mandatory requirement on the City that it complete an unspecified level of coordination with the Coastal Commission before the City’s approval of the Project (e.g., by complying, in part orin full, with the suggestions provided by the Coastal Commissionin its commentletter). Given the lack of measurable standards as to the extent or timing of the coordination required, it was rational for the City to conclude that LU 6.5.6 was designedas a helpful reminder of the City’s legal obligations to “work . . . . 3B, with”all necessary agencies in the course of developing Banning Ranch. This “work” " Thetrial court thought that LU 6.5.6 logically must mean something beyond simply complying with preexisting legal obligations(e.g., to notify appropriate agencies aboutthe Project, to obtain necessary permits), else what would be the point of including it in the general plan? (See, e.g., Pub. Resources Code, §§ 30600, 30604 [coastal development permit issuance by Coastal Commission]; Cal. Code Regs., tit. 14, § 15086, subd. (a) [lead agency shall consult with and request comments from other agencies following preparation of draft EIR].) But not every sentencein a general plan creates a new legal obligation. Indeed, the City’s general plan implicitly acknowledges that not every “Policy” creates guidelines or standards against which the City’s behavior can be measured. 22 would, of course, center on the question of which segments of Banning Ranch would be preserved, which would be restored, and which would be developed. But it was up to the City to decide precisely how this strategy of working with concerned agencies would be implemented. The City’s decision to forego additional engagement with the Coastal Commissionprior to Project approval did not make the Project inconsistent with the generalplan. Thetrial court ruled to the contrary, applying what it deemed to be binding precedent. (See Native Plant, supra, 172 Cal.App.4th 603.) Native Plant held that Rancho Cordovaviolated its general plan byits failure to sufficiently coordinate with the United States Fish and Wildlife Service (the Service) in designing mitigation measures in connection with a developmentproject. (/d.at p. 608.) The Native Plant project concerned a 530 acresite at which a mix of development andpreservation was proposed. (Native Plant, supra, 172 Cal.App.4th atp. 608.) The project site featured vernal pools and seasonal wetland vegetation, which Wehavenot been pointed to any authority indicating that the City is required under the Coastal Act to identify ESHAin a project not covered by a coastal land use plan. (See, e.g., Cal. Code Regs., tit. 14, § 13052 [setting forth minimum “preliminary approvals” before request for coastal development permit will be accepted for filing; list of requirements does not include ESHAdesignations].) The closest the Conservancy comes to supporting such a claim is the following section from the Coastal Act: “The commissionshall, to the maximum extent feasible, assist local governments. . .. Similarly, every public agency, including . . . local governments, shall cooperate with the commission andshall, to the extent their resources permit, provide any advice, assistance, or information the commission may require to perform its duties and to more effectively exercise its authority.” (Pub. Resources Code, § 30336.) The Conservancy reasons that once the Commission requested the City to do something in its comment letter, it was the City’s obligation to follow up on the request. We agree with the City that an ESHAdesignationis a legal conclusion, not the sort of cooperation mandated by Public Resources Code section 30336. There is no authority for the proposition that the City violatedits statutory duty to cooperate with the Coastal Commission by not including ESHA designationsin its EIR. And regardless, there is not a Coastal Act claim before this court. This case is about the City’s obligations under the general plan and CEQA. 23 provided “habitats for two species of vernal pool crustaceans — vernal pool fairy shrimp and vernal pool tadpole shrimp — that are listed as threatened and endangered (respectively) under the federal Endangered Species Act of 1973.” (/d. at p. 609.) In the spring of 2004, the Service, in conjunction with other federal agencies, jointly created a “conceptual-level strategy” composed ofprinciples and standards designedto protect aquatic resource habitats at the site. (/d. at p. 609.) Both after the proposed project was announcedin September 2004 andafter the release of the draft EIR in October 2005,the Service commentedthat the proposed project appeared to be inconsistent with the conceptual-level strategy endorsed by the Service. (/d. at pp. 610-612.) Rancho Cordova nonetheless approved the project. (/d. at p. 612.) Among other contentions, it was argued that Rancho Cordovaviolatedits general plan by failing to comply with Policy NR 1.7, which “providesthat‘[p]rior to project approvalthe City shall require a biological resources evaluation for private and public developmentprojects in areas identified to contain or possibly containlisted plant and/or wildlife species based upon the City’s biological resource mapping provided in the General Plan EIR or other technical materials.’ To implement this policy, Action NR.1.7.1 provides that ‘[flor those areas in which special-status species are found or likely to occur or where the presence of species can be reasonably inferred, the City shall require mitigation of impacts to those species that ensure that the project does not contribute to the decline of the affected species populationsin the region to the extent that their decline would impact the viability of the regional population. Mitigation shall be designed by the City in coordination with the ... Service . . . and the California Department of Fish and Game (CDFG), and shall emphasize a multi-species approach to the maximum extent feasible. This may include developmentor participation in a habitat conservation plan.’” (Native Plant, supra, 172 Cal.App.4th at p. 635.) It was undisputed that the site contained special-status species. (Native Plant, supra, 172 Cal.App.4th at p. 639.) Rancho Cordova “[u]nquestionably” included 24 mitigation provisionsin the project. (/d. at p. 640.) And there wassufficient evidence in the record for Rancho Cordovato reasonably concludethat its mitigation measures were consistent with the substantive requirements set forth in Action NR 1.7.1. (/bid.) But Rancho Cordovadid not coordinate with the Service in designing the project’s mitigation measures. (/d. at pp. 640-642.) Rancho Cordova positedthat its obligation to coordinate with the Service was met by consulting with the Service,i.e., by soliciting comments to the project and draft EIR, by considering those comments, and by responding to commentsin the final EIR. (/d. at p. 641.) But, given the language in its general plan, the appellate court held it was unreasonable for Rancho Cordova to construe the words “coordination with” as meaning mere consultation. (/bid.) “[W]e cannot reasonably deem this ‘coordination’ requirement satisfied by the mere solicitation andrejection of input from the agencies with which [Rancho Cordova] is required to coordinate the design of mitigation measures for the Project. Although our standard of review . . . is highly deferential, ‘deference is not abdication.’” (/d. at p. 642.) The Conservancyis correct that the City’s level of interaction thus far with the Coastal Commission wascloser to consultation than coordination, as defined in Native Plant. The Conservancyis also correctthat, like the Native Plant case, the lack of coordination here could be counterproductive for the City in that the Coastal Commission could ultimately refuse to issue development permits. (See Native Plant, supra, 172 Cal.App.4th at p. 642 [reasoning that the Service’s role in deciding whetherthe project would obtain a federal permit at the project site explained whythe general plan would require pre-approval coordination with the Service].) 25 But the City’s LU 6.5.6 is not as clear as Rancho Cordova’s NR 1.7.1. In the context of discussing the substantive requirements for mitigation, NR 1.7.1 issues a specific commandto Rancho Cordovato coordinate with a specific agency (“Mitigation shall be designed by the City in coordination with the . . . Service”) to accomplish a specific task (i.e., the design of the mitigation measures). (Native Plant, supra, 172 Cal.App.4th at p. 635.) The mitigation at issue pertained to a biological resources evaluation that had to occur “prior to project approval.” (Cf. Endangered Habitats League, Inc. v. County ofOrange, supra, 131 Cal.App.4th at pp. 793-796 [mitigation measures cannot be deferred to date beyond EIRcertification].) In contrast, LU 6.5.6 (entitled “Coordination with State and Federal Agencies”) does not compel coordination with the Coastal Commission prior to approval of the Project: “Work with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which developmentwill be permitted.” The Coastal Commission is not mentionedin the text or in the referenced implementation actions. There is no indication in LU 6.5.6 that this “work” must be completed before the City approves the Project. Whereas coordination in design suggests work done together at the beginning of the process, coordination in identification can be morenaturally construed as an ongoing process. LU 6.5.6 is vague and ambiguous — the Conservancy’s position depends on inferences made after considering multiple sections of the general plan; NR 1.7.1 is more resistant to multiple interpretations as to the timing of coordination. (Cf. Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1341 [county must comply with policythat is “fundamental... mandatory and anything but amorphous”].) With that said, we acknowledge that Native Plantis not easily distinguished. Thus,to the extent the holding ofNative Plant applies to this case, we reject its reasoning as incompatible with our deferential review of the City’s legislative acts. After acknowledging thelimits of its review (Native Plant, supra, 172 26 Cal.App.4th at pp. 637-638), the Native Plant court proceededto fault the City for failing to give the properinterpretation to a vague term— “coordination with.” But, recognizing that the generalplan itself did not make clear what “coordination with” meantin practical terms, the appellate court declined to give guidance as to what Rancho Cordova needed to do to comply with the coordination requirement. “[W]e do not read this ‘coordination’ requirementas ‘requir[ing] the City to subordinateitself to state and federal agencies by implementing their comments and taking their direction.’ At the same time, however, we cannot reasonably deem this ‘coordination’ requirement satisfied by the meresolicitation and rejection of input from the agencies with which the Cityis required to coordinate the design of mitigation measures for the Project.” (/d. at p. 642.) In other words, Rancho Cordova needed to do something in between consultation and capitulation. The appellate court declined to dictate the terms of the writ of mandate, leaving it to the trial court. (/d. at pp. 642-643.) Perhaps a goodfaith negotiation between Rancho Cordovaand the Service should have occurred. Perhaps a minimum numberofhours should have been devoted by Rancho Cordova toward reaching consensus with the Service. Perhaps the project developers should have been required to meet with the Service prior to submitting their project to Rancho Cordova. These might be goodor bad ideas. But none of them werein the general plan. And anyother specific requirementthe trial court might have tried to impose would likewise by necessity be designed out of whole cloth. The same problem playedouthereat thetrial court. The writ of mandate issued by the court prevents the City from “approving or otherwise implementing the developmentof the Project site unless and until [the City] fully compl[ies] with Policy LU 6.5.6 in accordance with this Court’s aforementioned determination.” The aforementioned determination wasthat “the City failed to coordinate and work with the . .. Coastal Commission in identifying which wetlands and habitats present on the Project site would be preserved, restored or developed, prior to your approval of the 27 Project.” The court does not explain what it means, in practical terms, to coordinate and work with the Coastal Commission prior to project approval. Presumably,it is something in between consultation and capitulation. But the lack of specific guidance in the general plan indicates to us that it is unreasonable to find the City’s viewofLU 6.5.6 to be arbitrary. It is improper for courts to micromanagethesesorts of finely tuned questions of policy and strategy that are left unanswered by the general plan. Cities are free to include clear, substantive requirements in their general plans, which will be enforced by the courts. But courts should not invent obligations out ofthin air. Adequacy ofEIR Under CEQA “In reviewing an agency’s compliance with CEQAinthe courseofits legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there wasa prejudicial abuse ofdiscretion.’ [Citation.] Such an abuseis established‘if the agency has not proceeded in a mannerrequired by law orif the determination or decision is not supported by substantial evidence. Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412, 426,fn. (Vineyard Area Citizensfor omitted.) “An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQAcase,as in other mandamuscases,is the sameasthetrial court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQAis de novo.” (Jd. at p. 427.) “CEQArequires an EIR to reflect a good faith effort at full disclosure... .” (Kings County Farm Bureauv. City ofHanford (1990) 221 Cal.App.3d 692, 712.) “Before the impacts of a project can be assessed and mitigation measures considered, an EIR must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined.” (County ofAmador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952.) 28 The Conservancy contends the City violated CEQA byrefusingto identify ESHAsin the EIR;all of its sub-arguments follow from this initial premise. The Conservancyclaims the City consciously avoided making this determination becauseit wasawarethat a goodfaith effort in that direction could short circuit aspects of the Project that it wished to include(e.g., the extension of a road through ESHA). Atleast as early as December 2003, the City was on notice that determining which portions of Banning Ranch were ESHAs would be an important and controversial issue. Previous studies done by other agencies had determined that Banning Ranchincludedcritical habitat for the California gnatcatcher and San Diegofairy shrimp. Theinitial biological study performed by Glenn Lukos Associates, Inc., in connection with the Project application indicated that ESHAs were present at Banning Ranch. The Coastal Commission’s comments on the draft EIR specifically indicated that roads proposed as part of the Project “would result in significant, unavoidable impacts to ESHA.” Inshort, an honest, good faith effort to categorize specific Banning Ranch habitats as ESHA(or not) may have necessitated a reworking of the Project. The City’s response is that an ESHA determinationis a legal determination, ultimately made by the Coastal Commissionin a project like the instant one(i.e., a project not covered by the City’s coastal land use plan). (Cf. Chaparral Greensv. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145 [no “requirement under CEQAthat a public agency speculate as to or rely on proposed or draft regional plansin evaluating a project”].) All of the necessary data pertaining to biological resources and habitat at Banning Ranchis included in the EIR. The EIR describes the environmental impacts of the Project and mitigation measures designed to address those impacts. The Conservancy’s complaint concerns the City’s reluctance to draw a legal conclusion based on a review ofthedata, not the failure to include data orscientific analysis that would enable a decisionmakerto classify a habitat as ESHA. 29 The City’s position is supported by our opinion in Banning RanchI, supra, 211 Cal.App.4th at pages 1233-1234, which rejected a similar contention by the Conservancypertaining to a separate project. In Banning RanchI, the Conservancy arguedthat “the EIR failed to disclose the park project’s inconsistency with the Coastal Act.” (Ud. at p. 1233.) The supposed inconsistency wasthat the EIR “stated no area of [the] project had been designated an ESHA,according to the City’s coastal land use plan. It acknowledged twoareas had ‘the potential to be considered . .. ESHA[s] by the California Coastal Commission.’” (/d. at pp. 1233-1234.) The Conservancyclaimedthat “the Coastal Commissionis ‘highly likely’ to designate the two areas as ESHAs,andwill reject the attempted mitigation.” (/d. at p. 1234.) This court’s response wasthatit “remain[ed] to be seen” whether the Coastal Commission would designate the contested habitats as ESHAs. (/bid.) “There are no inconsistencies at the moment; the EIR adequately flagged potential inconsistencies and addressed them in advance through proposed mitigation.” (Jbid.) Similarly, in the instant case, the City found the Project to be consistent with the policies of the Coastal Act. The main differences between the cases are that the City was not obligated to apply its coastal land use plan to Banning Ranch(unlike the park project at issue in Banning Ranch I) and the City opted not to speculate about potential ESHAat Banning Ranchin this case. Instead, the City simply deferred ESHA determinations to the Coastal Commission. This difference between thecases is unimportant for our purposes. The important pointis that the City adequately flagged potential inconsistencies with the Coastal Act by emphasizing (1) that the Project was outside the scopeofits coastal land use plan, and (2) that the Coastal Commission would determine whether ESHAswereaffected by the Project. Clearly, it “remains to be seen” (Banning RanchI, supra, 211 Cal.App.4th at p. 1234) whether the Coastal Commission will issue a development permit for the Project as currently constituted. CEQA does not 30 require the City to prognosticate as to the likelihood of ESHA determinations and coastal developmentpermit approval. DISPOSITION The judgmentis reversed. The court shall set aside the peremptory writ of mandate issued on January 15, 2014, and enter a new judgmentdenyingrelief to the Conservancy. The City shall recoverits costs on appeal. IKOLA,J. WE CONCUR: BEDSWORTH,ACTINGP.J. THOMPSON,J. 31 PROOF OFSERVICE [Code Civ. Pro. § 1013a; revised 5/1/88] STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I am employedin the County ofOrange, State ofCalifornia. I am over the age of 18 and not a party to the within action. My business address is 23422 Mill Creek Drive, Suite 105, Laguna Hills, California 92653. On June 29, 2015, I served the foregoing documentdescribed as PETITIONFOR REVIEWonthe parties shown on the Attached Service List as follows: OND (By Overnight Delivery) I caused the envelope(s) containing the foregoing documentto be delivered to GOLDEN STATE OVERNIGHTfor overnight delivery to the parties on the attached servicelist. USM (By U.S. Mail) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at Laguna Hills, California. I am “readily familiar” with the firm's practice ofprocessing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Laguna Hills, California in the ordinary course of business. I am aware that on motion ofthe party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. SCE (Supreme Court E-service) Pursuant to California Rule of Court Rule 8.212, I electronically transmitted such document(s) to the California Supreme Court by sendingit to that Court’s electronic service address. FAX (By Fax) 1 caused such document(s) to be transmitted by facsimile to . A transmission report wasproperly issued by the fax machine and the transmission wasreported as complete and withouterror to the numberlisted herein. Executed on June 29, 2015, in Laguna Hills, California. I declare under penalty under the laws of the State of California that the ANTON, Oe, SERVICE LIST for: Banning Ranch Conservancy v. City ofNewport Beach,et al. Fourth District Court of Appeal Case No. G049691 [Orange County Superior Court Case No. 30-2012-00593557] Attorneys for City of Newport Beach and City Council of the City of Newport Beach: By: OND Aaron C. Harp, City Attorney Leonie H. Mulvihill, Assistant City Attorney OFFICE OF THE CITY ATTORNEY, CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, CA 92658 Phone: (949) 644-3131 Fax: (949) 644-3139 E-mail: aharp@newportbeachca.gov Imulvihill@newportbeachca.gov Whitman F. Manley / Jennifer S. Holman REMY MOOSE MANLEY, LLP 555 Capitol Mall Suite 800 Sacramento, CA 95814 Phone: (916) 443-2745 Fax: (916) 443-9017 E-mail: wmanley@rmmenvirolaw.com / jholman@rmmenvirolaw.com Attorneys for Newport Banning Ranch, LLC, Aera Energy, LLC and Cherokee Newport Beach, LLC: By: OND Susan K. Hori / Benjamin G.Shatz MANATT, PHELPS & PHILLIPS, LLP 695 Town Center Drive 14th Floor Costa Mesa, CA 92626 Phone: (714) 371-2528 Fax: (714) 371-2550 E-mail: shori@manatt.com / b.shatz@manatt.com Qne copy to: By: OND Honorable Judge Kim G. Dunning Orange County Superior Court — Civil Complex Center 751 West Santa Ana Boulevard Department CX104 Santa Ana, CA 92701 One copyto: By: OND Clerk of the Court California Court of Appeal Fourth District, Division Three 601 West Santa Ana Boulevard Santa Ana, California 92701 One copyto: By: OND Hope Schmeltzer, Chief Counsel Louise Warren, Staff Counsel California Coastal Commission 45 FremontStreet Suite 2000 San Francisco, CA 94105 E-mail: Hope.Schmeltzer@coastal.ca.gov Warren.Louise@coastal.ca.gov One copyto: By: OND Attorney General Kamala D.Harris % Jamee J. Patterson, Supervising Deputy Attorney General Office of the Attorney General P.O. Box 85266-5299 San Diego, CA 92186-5266 E-mail: Jamee.Patterson@doj.ca.gov
