WOODWARD PARK HOMEOWNERS ASSOCIATION, INC., v. CITY OF FRESNO

Filed 4/13/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Story continued from Part I

DISCUSSION

Standards of review

If a CEQA petition challenges agency action that is quasi-adjudicatory in character, the trial courts role is only to determine whether the action is supported by substantial evidence in the record. ( 21168.) If the agency action was quasi-legislative in character, the trial court reviews the action for abuse of discretion. The agency abuses its discretion if it does not proceed in the manner required by law or if the decision is not supported by substantial evidence. ( 21168.5.) Substantial evidence is defined in the Guidelines as enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. (Guidelines,  15384, subd. (a).) The formulations in sections 21168 and 21168.5 embody essentially the same standard of review. Both require the trial court to determine whether the agency acted in a manner contrary to law and whether its determinations were supported by substantial evidence, and neither permits the court to make its own factual findings. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5; Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 589-590.) The Court of Appeal reviews the trial courts decision de novo, applying the same standards to the agencys action as the trial court applies. (Neighbors of Cavitt Ranch v. County of Placer(2003) 106 Cal.App.4th 1092, 1100.)

A similarly deferential standard is applicable to Woodward Parks claim under Government Code section 65300.5. The citys determination that the project was consistent with the general plan and the Woodward Park Community Plan can be overturned by a reviewing court only if the city abused its discretion. It abused its discretion only if its determination was not based on findings or the findings were not based on substantial evidence. (Families Unafraid to Uphold Rural Etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1338.)

I. Foundational defects in the environmental documents

The city approved two environmental documents, an EIR and a statement of overriding considerations. The EIR has often been called the heart of CEQA. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.) It is an informational document whose purpose is to inform the public and decision makers of the environmental consequences of agency decisions before they are made. (Ibid.) Beyond this informational purpose, an EIR can lead to affirmative legal obligations for agencies: They are required to mitigate or avoid the significant effects on the environment identified in an EIR whenever it is feasible to do so if they approve projects that have significant effects. ( 21002.1, subd. (b).) Agencies are permitted to approve projects with significant environmental impacts, even if there are no feasible mitigation measures, if they find that overriding considerations justify the approval. Those considerations must be set forth in a statement of overriding considerations and supported by substantial evidence. ( 21081; Guidelines,  15093.) Both documents were fundamentally defective in this case and failed to satisfy legal requirements.

A. Environmental baseline

1. Applicable law

The Guidelines state that an EIR must contain a description of the environmental setting of the project and that this description must describe the actual physical conditions of the project site when the notice of preparation of the EIR is published. Further, and crucially in this case, the existing physical conditions will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. (Guidelines,  15125, subd. (a).) Also, [w]here a proposed project is compared with an adopted plan, the analysis shall examine the existing physical conditions at the time the notice of preparation is published as well as the potential future conditions discussed in the plan. (Guidelines,  15125, subd. (e).) These requirements protect the fundamental essence of an EIR, its evaluation of a projects environmental impacts. They protect this, in cases where the proposed project is actual construction, by ensuring that the evaluation of impacts normally will do what common sense says it should do and what the EIRs most important audience, the public, will naturally assume it does: compare what will happen if the project is built with what will happen if the site is left alone.

To put the point a bit differently: If an EIR for a construction project on vacant land uses something other than vacant land as its baseline, the EIR will report only a portion of the impacts the project will have. For instance, if a hypothetical project half the size of the proposed project is used as a baseline, the EIR will report only half the projects impact. The EIR would fail to inform the public of the other half. It would also necessarily lack consideration of mitigation measures for the omitted portion of the projects impact.

2. Analysis: actual vacant land versus hypothetical office park

In this case, the EIR acknowledged that the project site was presently a vacant lot. It then went on in many instances, however, to evaluate environmental impacts by comparing the projects impacts with those of the maximum buildable development under existing zoning and plan designations. The question presented is whether this approach satisfied the requirement that the EIR evaluate impacts by comparing the project to existing physical conditions.

The city and Zinkin contend that the EIR conformed to the Guidelines because it evaluated the proposed projects impacts in relation to both a vacant lot and a large development permissible under existing zoning and plan designations. If the EIR actually did this, its treatment of the baseline would be legally correct. Where, as here, the agencys action includes alteration of a previously adopted plan, the EIR (normally) still must compare the project with existing physical conditions but should also compare it with potential future conditions discussed in the plan. (Guidelines,  15125, subd. (e).) The second comparison is important because, among other reasons, it enables the public and decision makers to identify possible inconsistencies between the proposed project and the previously adopted plan. (See Discussion following Guidelines,  15125.)

This two-baselines approach only works if the EIR actually carries out both comparisons. That did not happen in this case. Instead, the EIR had a dominant theme of comparing the proposed project with build-out under existing zoning, combined with a scattered, partial discussion of some of the projects impacts relative to vacant land.

As we have said, the EIRs traffic discussion did include a comparison of existing traffic with existing traffic plus project-generated traffic. It contained a description of existing air pollution. It also referenced a vacant lot as the point of comparison in describing some of the projects minor impacts. For example, it stated that the project will have an unavoidable aesthetic impact because it will look different from a vacant lot, and its discussion of impacts on biotic resources implicitly compared the project with a vacant lot by considering the need to remove and relocate certain species, if found.

Despite this, the EIRs bottom-line conclusions on the major impacts at issue emphasized the marginally increased impacts of the proposed project over build-out under existing zoning. The section of the air pollution discussion labeled IMPACTS set forth tables comparing air pollution that would be caused by build-out under existing zoning with pollution that would be caused by the proposed project. It then says the operation of the project would produce slightly more air pollution than the large office park allowable under existing zoning, without saying whether the increase is more than slight relative to the vacant land. In the traffic discussion, a repeated emphasis is that by some measures the proposed project would generate less traffic than a project buildable under existing zoning and plan designations. In several places, it is stated that, while existing designations for the project site included a cap of 12,400 trips per day, the proposed project was projected to generate only 12,297 trips per day, so building the project would reduce traffic by that measure. Tellingly, however, the EIR stated in another section that the no-project alternativewhich the EIR also defined as a large office park buildable under existing zoningmight generate about 1/2 the daily trips the project would generate. This means that, although the proposed projects trip generation will come in under the 12,400-trip cap, a development allowed under existing zoning would come in well under that cap. In effect, the EIR used the trip cap as a third baseline to make the projects impacts look even smaller than the development-under-existing-zoning baseline did. Elsewhere, the EIR found that the project would generate less peak-hour traffic than a project buildable under existing zoning. In any event, this thinking is obviously not based on a comparison of the proposed project with a vacant lot.

The upshot of all this is that the EIR never presented a clear or a complete description of the projects impacts compared with the effects of leaving the land in its existing state. Readers who have been told that the air pollution impact is slight and that the traffic generated will be less than the given benchmark should not have to stop and puzzle it out that these conclusions are based on a comparison with a large office park that is not, in fact, there. Those who did puzzle it out were still left wondering whether the impacts would be slight or major in relation to vacant land.

Due to these problems, the EIR in this case is closely analogous to two EIRs the Court of Appeal found to be legally inadequate in Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350 (EPIC). One area of a county had 418 residents and another had 3,800. (Id. at p. 358.) The existing county general plan established a population-holding capacity for the first area of 70,400 and for the second of 63,600. A proposed plan amendment would have reduced the capacity figures to 5,800 and 22,400. The EIRs described the proposed plan amendments impacts by saying that the drastic reductions in the population-capacity figures meant the adoption of the amendment would have no adverse environmental impacts. (Id. at pp. 357-358.)

The appellate court found the EIRs deficient because they should have compared the plan amendment to the existing state of the physical environment, not to the existing plan. CEQA nowhere calls for evaluation of the impacts of a proposed project on an existing general plan; it concerns itself with the impacts of the project on the environment, defined as the existing physical conditions in the affected area. The legislation evinces no interest in the effects of proposed general plan amendments on an existing general plan, but instead has clearly expressed concern with the effects of projects on the actual environment upon which the proposal will operate. (EPIC, supra, 131 Cal.App.3d at p. 354.) Since the EIRs at issue compared the amendments with hypothetical conditions contemplated by the existing plan and not with actual existing physical conditions, those EIRs can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts which would result. (Id. at p. 358.) A point of similarity between EPIC and the present case is that there, as here, it was true that the [EIRs] do discuss certain physical impacts upon the existing environment, but such information must be painstakingly ferreted out of the [EIRs]. (Id. at p. 357.)

A number of other cases reach similar conclusions. (See, e.g., City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 246 [agency must consider impacts of rezoning on existing physical environment; comparison of project possible under old zoning with project possible under proposed new zoning bears no relation to real conditions on the ground].) As a popular CEQA treatise describes them, EPIC and similar cases hold that, in assessing the impacts of a project proposed for an undeveloped piece of property, agencies should compare project impacts against the existing environment, rather than some hypothetical, impacted future environment that might occur without the project under existing general plan and/or zoning designations. (Remy et al., Guide to the California Environmental Quality Act (10th ed. 1999) p. 165 (hereafter Remy).) As in EPIC, the EIR here was legally inadequate as an informational document because it failed to analyze consistently and coherently the impacts of the project relative to leaving the land in its existing physical condition.

The city makes an alternative argument that, even if it did not sufficiently analyze the projects impacts relative to existing physical conditions, it had discretion not to do so. The proposition that an agency sometimes can choose a baseline other than existing physical conditions is implicit in the Guidelines statement that existing physical conditions are normally the baseline. Even so, in this case, neither the city nor Zinkin has advanced any reason why the normal approach was not required here. If EPIC represents the normal situationand there is every reason to think it does, since it is cited as authority for the Guideline in question (see Discussion following Guidelines,  15125)we would need some persuasive reason not to apply EPIC. The city says EPIC is inapt because here the EIR did contain some references to existing conditions. As we have just seen, the EIRs in EPIC did also, but that was not enough where the main thrust was a comparison of the proposed project with hypothetical conditions that were allowed under the existing general plan.

The city cites Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, but that case does not present an analogous situation. There, the question was whether an agency that did use existing physical conditions as the environmental baseline in an EIR was required not to do so because those conditions resulted from previous illegal construction. The Court of Appeal held that the agency acted within its discretion in using existing physical conditions as the baseline. (Id. at p. 1278.)

Situations appearing in the case law that were treated as not normal are not comparable to the present case. (Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 985-986 [EIR reviewing update of housing element of general plan, not involving approval of any specific construction, could take preexisting policies readopted without change as part of baseline]; Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1477, fn. 10 [supplemental EIR prepared because of changes in previously reviewed and approved project could use project as approved in original EIR as environmental baseline].) There was no reason here why the usual rule requiring the baseline to be the existing physical environment would not apply.

The city and Zinkin finally claim that the EIR did not have to use existing physical conditions as the baseline because previous environmental review of the property for other purposes analyzed impacts to the site from the dirt up. Previous review mentioned by the city and Zinkin includes the 1990 rezoning and plan amendments and an EIR prepared for the 1989 Woodward Park Community Plan. We do not see how environmental review occurring years before the present project was conceived affects the question of what the baseline should have been in the EIR for the present project. The suggestion appears to be that members of the public could (1) retrieve the environmental documents prepared on those earlier occasions, (2) locate analyses that evaluated impacts by comparing the vacant land with whatever plans or projects those earlier processes approved, and then (3) add those impacts to the impacts identified in the present EIR. The sum of the earlier-identified impacts and those identified now would be the actual impacts of the present project based on a comparison with vacant land. Even assuming this would have been possible, an agency cannot satisfy its CEQA obligations by imposing a burden of that kind on the public. The notion that it could is unsupported by authority and inconsistent with the axiom that an EIRs basic purpose is to inform. It is significant, also, that the city and Zinkin do not even claim that there is a prior EIR for a project on this property. The Woodward Park Community Plan EIR pertained to a community plan, not a specific construction project. There is no indication in the record that any EIR was certified for the 1990 rezoning and plan amendments. The EIR here failed to use the existing physical environment as the environmental baseline, and none of the citys or Zinkins arguments show that any other baseline was permissible.

3.Exhaustion and preservation

The city and Zinkin argue that the baseline issue was never raised in the agency proceedings or in the trial court, so Woodward Park has not exhausted its administrative remedies and the issue is not preserved for appeal. We disagree.

Exhaustion of administrative remedies

Before a petitioner can assert a CEQA violation against an agency in court, someonenot necessarily the petitionermust raise the same issue before the agency in the administrative proceedings. ( 21177, subd. (a).) The petitioner itself need only have raised some objection before the agency ( 21177, subd. (b)); if it has, it may then litigate any issue raised before the agency by anyone. The claimed violation and the evidence on which it is based must have been raised by someone in the administrative forum. (Barthelemy v. ChinoBasin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1620-1621.) Even so, less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding, since citizens are not expected to bring legal expertise to the administrative proceeding. (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163.) Where there was no public hearing or other opportunity for the public to raise objections, the exhaustion requirement does not apply at all. ( 21177, subd. (e).) The purpose of the exhaustion doctrine is to give the agency an opportunity to respond to specific objections before those objections are subjected to judicial review. (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1449.)

The baseline issue was fairly raised by the comment letter submitted by Caltrans in response to the notice of preparation. The letter stated:

Using a full build-out residential development as a no build scenario is also inaccurate. In order to be accurate for this Air Quality Impact Assessment, the no build scenario should reflect current conditions (vacant lot) should the property not be developed, compare to build-out of current zoning with residential and then finally compare to build-out with mixed use development.

The writer should have referred to a full build-out office development instead of a residential one, but other than that, his comment captures the essence of this issue. The same letter made the point that the city should not refuse to mitigate freeway traffic impacts on the ground that build-out under existing zoning would cause more peak-hour trips because that was not the relevant point of comparison. This also raised the substance of the baseline issue. Petitioners administrative remedies were exhausted on this issue.

Preservation of issue for appeal

As a general rule, an appellate court will not review an issue that was not raised by some proper method by a party in the trial court. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  394, p. 444.) It is important to remember, however, that the purpose of this general rule is to give the trial court and parties an opportunity to correct an error that could be corrected by some means short of an opposite outcome in the trial court. A noncurable defect of substance where the question is one of law is not an error that falls within the rule. A matter involving the public interest or the due administration of justice also is not. (Id. at p. 450.) Here, the baseline issue we have just discussed falls within both of these exceptions.

United California Bank v. Bottler (1971) 16 Cal.App.3d 610 illustrates the point. The trial court there entered an order directing that if a testators daughter should have no living descendants at the time of her death, the remainder of the assets devised to her in trust by the testator (her father) pursuant to a power of appointment would be distributed to the heirs of her grandfather, who originally created the power of appointment. (Id. at pp. 613-615.) Holding that this result violated the rule against perpetuities, the Court of Appeal reversed. (Id. at pp. 616-618.) It did not matter that no party raised the perpetuities issue in the trial court:

It does not appear that the perpetuities problem was ever brought to the attention of the trial court. Appellant raises it for the first time in her brief in this court. Since the rule [against perpetuities] is based upon public policy rather than private convenience, we cannot invoke any doctrine of waiver, but must face the issue and apply the limitation which the law imposes. (United California Bank v. Bottler, supra, 16 Cal.App.3d at p. 616.)

The Court of Appeal in Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1 (Bayside) made a similar point. The trial court issued a writ of mandate compelling a county to issue a permit to a timber company to grade a logging road. It ruled that a state law, the Forest Practice Act, preempted local regulation. (Bayside, supra, at pp. 3-4.) The Court of Appeal reversed, holding that the Forest Practice Act violated the state and federal Constitutions. (Bayside, supra, at p. 14.) The constitutional issue was raised for the first time on appeal. The court considered and ruled on the merits of the issue anyway, observing that issues raised for the first time on appeal are often considered if they relate to questions of law only, especially where the public interest or public policy is involved. (Id. at p. 5.) The court concluded that regulation of the logging industry was of great interest to the public, so the case was within the exception for pure questions of law relating to the public interest. (Id. at p. 6.)

There are many other examples. (See, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394 [constitutional issue of great public interest raised for first time on appeal]; Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476 [recoverability of money damages for violations of state due process and equal protection clauses raised for first time on appeal], overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 320; In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 488 [clear-and-convincing-evidence standard must be applied to claim of transmutation from separate to community property; issue raised for first time on appeal].)

We conclude that the issue we are now considering falls within the exceptions. The question is whether the environmental documents were adequate as a matter of law. This is, of course, a question of law. It is also an error the trial court could not have cured. The defects in the environmental documents were fixed and there was nothing the court or parties could do about them. If Woodward Park had advanced this issue in a more detailed way, the trial court could have responded correctly only by granting the writ. Further, the determination of whether the agency has complied with CEQA before approving a major development project in a densely populated area is an issue of public interest. To refuse to entertain this issue would not advance the purposes of the preservation doctrine.

The parties failure to raise the issue in their original appellate briefs does not bar our consideration of it if the parties have had a fair opportunity to present their positions. (See Wong v. Di Grazia (1963) 60 Cal.2d 525, 532, fn. 9 [parties missed rule-against-perpetuities issue in their briefs but Court of Appeal raised it at oral argument; the issue  is of considerable public interest; it has been fully argued before this court [i.e., the Supreme Court]; we, accordingly, dispose of the issue on its merits].) This issue was raised in our briefing letter and the parties submitted supplemental briefs addressing it. In sum, the issue is an appropriate one to address on appeal.

B. No-project alternative

The no-project alternative employed in the EIR presents a similar question. In circumstances like these, the no-project alternative should discuss both the existing physical conditions and likely future conditions under the existing zoning and plan designations, and the city argues that this is just what happened. In reality, the EIRs no-project discussion mentioned the propertys vacant status briefly and then focused all its analysis on the maximum allowable project under existing designations. If the EIRs impact analyses had been based on the correct baselineexisting physical conditionswe might conclude that the city acted within its discretion in minimizing the examination of existing physical conditions in the no-project discussion, since a comparison of the project with existing physical conditions would already be in the document. As we have just explained, the EIR did not use existing physical conditions as the baseline. This being so, we conclude that the no-project discussion was inadequate as a matter of law because it considered build-out under existing designations almost to the exclusion of existing physical conditions.

1. Applicable law

The Guidelines set out the dual character of the no-project alternative in situations where some other future development is likely under existing designations if the present project is disapproved:

The no project analysis shall discuss the existing conditions at the time the notice of preparation is published as well as what would be reasonably expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services. (Guidelines,  15126.6, subd. (e)(2).)

More pointedly, where the project is a development project on identifiable property, the following applies:

[T]he no project alternative is the circumstance under which the project does not proceed. Here the discussion would compare the environmental effects of the property remaining in its existing state against environmental effects which would occur if the project is approved. If disapproval of the project under consideration would result in predictable actions by others, such as the proposal of some other project, this no project consequence should be discussed. In certain instances, the no project alternative means no build wherein the existing environmental setting is maintained. However, where failure to proceed with the project will not result in preservation of existing environmental conditions, the analysis should identify the practical result of the projects non-approval and not create and analyze a set of artificial assumptions that would be required to preserve the existing physical environment. (Guidelines,  15126.6, subd. (e)(3)(B).)

The Guidelines state that the no-project alternative is not necessarily the same as the environmental baseline. (Guidelines,  15126.6, subd. (e)(1).)

Environmental treatise writers have recognized that, as a practical matter, these provisions mean the no-project discussion will often be primarily devoted to comparing the proposed project to a project that could be built under existing zoning and plan designations even though the baseline is existing physical conditions. The Guidelines have repudiated the proposition that the analysis of the no project alternative in an EIR must describe maintenance of the existing environment as a basis for comparison of the suggested alternatives to the status quo. (Remy, supra, at p. 169.) One treatise even suggests that when a project is a plan revision, the labor should simply be divided between the baseline-impacts discussion and the no-project discussion. The baseline-impacts discussion should be based on existing physical conditions and the no-project discussion on hypothetical build-out under the existing plan. [W]hen a project consists of the revision of a plan or policy, the projects impacts are assessed against [a baseline of] existing conditions, and future conditions under the existing plan are treated as a no-project alternative. (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2006)  13.12, p. 638.)

2. Analysis: failure to address existing conditions adequately anywhere in the EIR

Here, the agency chose to push the envelope in both discussions, shoving existing physical conditions to the margin in both its measurement of impacts against a baseline and its consideration of the no-project alternative. Although a no-project discussion heavily dominated by consideration of build-out under existing designations might have been proper in an EIR where the baseline was existing physical conditions, that was not the baseline used here. The Guidelines on the no-project alternative do require attention to existing physical conditions as well as to hypothetical future developments under existing plans. (Guidelines,  15126.6, subd. (e)(2).) Due to the fact this attention was not adequately paid anywhere in the EIR, we cannot say the no-project discussion was legally adequate.

3. Exhaustion and preservation

The city and Zinkin argue that Woodward Park failed to exhaust administrative remedies with respect to this issue and that it has not been preserved for appeal. Again, we disagree.

Exhaustion of administrative remedies

Administrative remedies were exhausted on this issue. As our discussion has shown, the question is closely related to the environmental baseline. The comment letter from Caltranssaying that [u]sing a full build-out development as a no build scenario is inaccuratewas sufficient to raise both issues before the city council. Further, it is apparent from the final EIR that the city took this letter as showing potential difficulties with the EIRs no-project definition. The final EIR added this clarification to its no-project discussion:

The No Project alternative is considered office development according to existing zoning. CEQA Guidelines Section 15126.6[(e)](3)(B) stipulates that if the proposed project is a development project on identifiable property, the no project alternative will be the circumstance under which the project does not proceed. This section, however, also stipulates that where failure to proceed with the project will not result in preservation of the existing environment (i.e., vacant property) the analysis should identify the practical result of the projects non-approval.

The project site is vacant and by-passed and has long been planned and zoned for office use. If the proposed project is denied, it is unlikely that the site will remain in its vacant condition and the future development of the site will occur. As a result, the analysis in the [draft EIR] for the No Project Alternative is consistent with CEQA provisions.

This analysis is not correct for the reasons we have explained, but it does show that the city knew of objections and had an opportunity to correct the problem.

Preservation of issue for appeal

The question of whether the EIR included a correct no-project analysis was a question of law, and the legal adequacy of the EIR unquestionably raises a matter of public interest. This means, for the reasons we discussed earlier, that it is appropriate to address the issue now even though it was raised for the first time on appeal. The parties were given an opportunity to file, and did file, supplemental briefs on the issue. Consequently, it is appropriate to consider the merits.

C. Statement of overriding considerations

1. Applicable law

An agency must adopt a statement of overriding considerations when it approves a project in spite of significant, unavoidable environmental impacts that cannot be sufficiently mitigated. ( 21081, subd. (b); Guidelines,  15093.) Overriding considerations contrast with mitigation and feasibility findings. They are larger, more general reasons for approving the project, such as the need to create new jobs, provide housing, generate taxes, and the like. (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 847.) This does not mean, however, that an agencys unsupported claim that the project will confer general benefits is sufficient. The asserted overriding considerations must be supported by substantial evidence in the final EIR or somewhere in the record. (Sierra Club v. ContraCostaCounty(1992) 10 Cal.App.4th 1212, 1223; Guidelines,  15093, subd. (b).)

2. Analysis: misrepresentation of project alternatives

A statement of overriding considerations is similar to findings in an EIR in that it needs to be supported by substantial evidence in the record. An EIR is also required to make a good-faith effort to disclose the environmental impacts of a project to decision makers and the public. (Berkeley Keep Jets over the Bay Com. v. Board of Port Comrs.(2001) 91 Cal.App.4th 1344,1355; Guidelines,  15151.) An EIR vindicates the right of the public to be informed in such a way that it can intelligently weigh the environmental consequences of a proposed project (Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 804). Further, an appellate court is required to determine the EIRs sufficiency as an informative document. (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.)

We believe a statement of overriding considerations, like an EIR, must make a good-faith effort to inform the public. In Sierra Club v. ContraCostaCounty, supra, 10 Cal.App.4th at page 1223, the court acknowledged that a statement of overriding considerations represents an agencys policy decision, but concluded that it still must have a foundation in the record. Likewise, the statements status as a policy judgment does not insulate it from CEQAs central demand that environmental decisions be made after the public and decision makers have been informed of their consequences and the reasons for and against them. The statements purposes are undermined if its conclusions are based on misrepresentations of the contents of the EIR or it misleads the reader about the relative magnitude of the impacts and benefits the agency has considered.

The statement of overriding considerations adopted in this case was inadequate for these types of reasons. The EIR described the project alternatives as developments that were as large as, or larger than, the proposed project. To the contrary, the statement of overriding considerations said the proposed project had superior economic benefits because the alternatives generally propose no development or development to a lesser degree and primarily provide for developments of a reduced intensity or no development. Having minimized the appearance of the proposed projects impacts bypacking the EIR with intensive project alternatives whose environmental advantages were few, the city was confronted with the other side of the coin. These large alternatives likely would have economic benefits of comparable magnitude to the proposed project and the balance would be close. In effect, by inaccurately describing the project alternatives as no development or development to a lesser degree, the statement applied a thumb to the scale.

The inevitable effect of describing the alternatives as intensive developments in the EIR and then characterizing them as smaller or nonexistent developments in the statement of overriding considerations was to mislead the public and decision makers about the projects advantages and disadvantages. The end result is the that the statement did not serve its mandated purpose as an informational document.

In reality, the primary difference between the proposed project and the project alternatives described in the EIR was that the proposed project had a shopping center while the alternatives had no shopping center or a smaller one. The alternatives more than made up the resulting difference in square footage by adding more office and office-related retail space. If the statement of overriding considerations had said accurately that the alternatives proposed no shopping center or a smaller shopping center instead of inaccurately no development or development to a lesser degree, it would have made a far different impression on the public. We do not have to look far to find a reason why the city might not have wanted to use the accurate language since many project opponents, especially neighbors, concentrated their fire on the shopping-center component of the project.

In addition, the citys claim of superior economic benefits was not supported by substantial evidence in the record. Nothing in the EIR or in the record supports the claim that the project would generate more economic activity than the equally large project alternatives.

The city has anticipated the possibility that one of its claimed overriding considerations could be struck down by asserting the sufficiency of each standing alone. The statement of overriding considerations says the benefits identified below are each one, in and of themselves, sufficient to make a determination that the adverse environmental effects are acceptable. The statements other claim is that the proposed project will provide a greater variety of economic activitynot just a greater quantity. The other alternatives would offer a lesser variety of employment opportunities, less available services for the community and less available housing; [t]he benefits of providing a mixed use development with a diverse variety of office uses together with commercial goods and services and residential uses within a given neighborhood would be reduced with any of the proposed alternatives; the alternatives would provide a lesser range of employment opportunities .

For starters, the claim about housing is not supported by sufficient evidence. The city admits that the 20 apartments in the proposal are speculativeonly a place-holderand that one of the project alternatives proposed far more apartments (135).

We will leave that claim aside and focus on what remains of the statements finding about variety of economic activity. Stripping away the excess verbiage, this finding is that some of the economic benefits of the proposed project would arise from retail goods and retail jobs at the shopping center, while the economic benefits of the alternatives would arise from other activities. This leads to the question of whether substantial evidence in the record supported the idea that a development with offices and a shopping center necessarily has a greater variety of economic activity than a development with offices and office-related retail space. We need not answer that question, however. If the essential claim of the statement of overriding considerations was that a development with a shopping center is economically better for the community than any feasible alternative development of comparable size, the statement was fundamentally misleading. Any claim about the special economic virtues of shopping centers was buried in obfuscatory language, such as [t]he benefits of providing a mixed use development with a diverse variety of office uses together with commercial goods and services and residential uses within a given neighborhood would be reduced with any of the proposed alternatives. In sum, if the basis of the decision was something special about shopping centers, the statement effectively concealed that basis from the reader.

There is a sort of grand design in CEQA: Projects which significantly affect the environment can go forward, but only after the elected decision makers have their noses rubbed in those environmental effects, and vote to go forward anyway. (Vedanta Society of So.California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 530.)

The statement of overriding considerations does not even come close to rubbing anyones nose in the facts. Although we agree with the contention of the city and Zinkin that the statement was not required to contain a quantitative fiscal analysis of the economic costs and benefits of the project, it still must contain a weighing and balancing analysis not dependent on assumptions contradicted by the EIR.

Story continued as Part III

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.