Adams v. City of San Bernardino

Filed 8/28/07 Adams v. City of San Bernardino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of San Bernardino County, John P. Wade, Judge. Affirmed.

Law Offices of Louis E. Goebel, Louis E. Goebel and Robert M. Miller for Plaintiffs and Appellants.

James F. Penman, City Attorney, Henry F. Empeno, Jr., Deputy City Attorney, Gresham Savage Nolan & Tilden, John C. Nolan and Jennifer M. Guenther for Defendant and Respondent City of San Bernardino.

Varner & Brandt, Bruce D. Varner and Brendan W. Brandt for Defendant and Respondent San Bernardino Valley Municipal Water District.

Lewis Brisbois Bisgaard & Smith, David F. Gondek and Karen A. Feld, for Real Party in Interest and Respondent San Bernardino Regional Water Resources Authority.

* * *

In consolidated appeals, we consider two separate environmental challenges under the California Environmental Quality Act (CEQA)[1] to the adequacy of a program environmental impact report (program EIR) for the Lakes and Streams project (Lakes Project) in the City of San Bernardino.

The Lakes Project envisions the construction of two noncontiguous reservoirs, North Lake and South Lake. The 44-acre North Lake is designed to offer a stable source of water, reduce the hazards of high underground water levels, provide aesthetically-pleasing recreational opportunities, and revitalize a core community. But creating it would require the demolition of 437 dwelling units and 30 businesses, and the dividing of a well-established neighborhood. The proposed South Lake would be much smaller, and less controversial: four houses would be removed to create five acres of wetlands.

The program EIR does what it is supposed to do: it provides detailed information to the public and responsible officials about the significant environmental effects of the Lakes Project, including North Lakes cumulative negative impacts. It does not mince words. It explains benefits and detriments, discusses reasonable alternatives, and commits the agencies to feasible mitigation measures.

The agencies stress they have yet to approve the project, or authorize construction or condemnation of any property. No designs will be finalized without additional environmental review and probably a number of subsequent EIRs. At most, the program EIR is designed to test the waters, and allow additional study.

Plaintiffs opening briefs (they never filed reply briefs) contain scant analysis and virtually no citation to the administrative record. They abdicate their duty to fairly summarize the facts and argue the law. Because plaintiffs have not met their burden of showing that the agencies ignored CEQA requirements or proceeded without substantial evidence to inform their decisions, we affirm.

I

Background

Defendant San Bernardino Valley Municipal Water District (District) and City of San Bernardino (City) are co-lead agencies on the Lakes Project. The District, which serves a large area from Fontana to Redlands, will build, own and operate the proposed North Lake. The City will do the same for the proposed South Lake. The project will be developed under the auspices of real party in interest San Bernardino Valley Water Resources Agency (JPA), a joint powers authority.

The North Lake project site is bounded by Base Line Street to the north, Ninth Street to the south, H Street to the west, and E Street to the east. Some 36 percent of the area consists of single-family homes, with another 22 percent consisting of apartments and other multi-family units. Commercial uses (primarily strip developments along the major arterials) comprise another 16 percent. About 30 percent of the land is either vacant or in existing public rights of way.

Plaintiff Ghassan Abdullah and nine other property owners within the proposed North Lake area have banded together to file a single lawsuit against the certification of the program EIR. They challenge the program EIR primarily because of the extreme displacement of people, housing and businesses and the absence of specifics.

Plaintiff Deanna Adams filed a separate lawsuit. She challenges the agencies failure to properly deal with her propertys status as a historical resource. The nearly one-acre property is located within the North Lake project area, about one block south of Base Line Street. It contains a Spanish Colonial revival structure that operated as a funeral home (Stephens & Bobbitt Mortuary) from 1928 to 1964. Adams now uses the building (renamed Victory Chapel) to stage weddings, baptisms, quinceaeras and similar events.

The same attorneys have filed both the Adams and Abdullah lawsuits.

A

Formulation of the Lakes Project

The Districts mission is to assure a reliable wholesale water supply to San Bernardino and our neighboring cities. It exercises stewardship over the Bunker Hill Groundwater Basin, one of nations largest underground basins, upon which more than one million residents in the East San Bernardino Valley and the City of Riverside rely as their primary water source.

The Bunker Hill Groundwater Basin poses problems and opportunities. The San Jacinto fault, which runs roughly perpendicular to the groundwater flow, blocks the southerly flow of the water, causing higher groundwater levels upstream of the barrier. At times, the groundwater levels have risen to the surface, resulting in structural damage, flooded basements, weakened load-bearing capacity of streets, disrupted underground utilities . . . , and increased development costs and limitations. This underground area of historically high groundwater creates a dangerous hazard of liquefaction in the event of an earthquake. As a complicating factor, contamination plumes, caused by improperly disposed industrial chemicals and solvents, are gradually migrating southward.

In August 1998, the District, the City and a third agency[2] joined together to create the JPA to remediate historically high groundwater levels within the Bunker Hill Basin, and to provide an emergency back-up supply and additional water storage capacity for expanding regional needs.

The JPA was tasked with an additional objective: urban revitalization. Severe economic blows came from the loss of three major employers, Norton Air Force Base, Kaiser Steel and the Santa Fe railroad. Some of the Citys older neighborhoods, including the proposed North Lake project area, fell into a period of decline, deterioration and abandonment. As a result, the City began searching for ways to harness its natural resources to create opportunities for economic revitalization in these particularly hard-hit areas.

In December 1999, the JPA came up with the Vision 20/20 plan, which called for a series of urban lakes and streams surrounding the downtown core to meet the JPAs goals. It recommended a phased construction, beginning with North Lake in a strategic location north of downtown, at the highest elevation within the proposed project area, close to existing master plan facilities. The second component, South Lake, would be developed later.

In early 2003, the JPA retained RBF Consulting, a water resources engineering firm, to prepare a program EIR for the Lakes Project. The JPA used a program EIR because the project being reviewed was simply conceptual, and would, if and when implemented, require further detailed, specific, projects to put its concepts in effect, which specific projects would, themselves, then be subject to subsequent review under CEQA.[3]

As planned, North Lake would cover 82 acres. This would include a 44- acre lake, with an average depth of about 15 feet. The lake would be used for water storage, and for such recreational activities as sail boating and fishing. Open space and public access would be interspersed along all four sides of the new lake, including a lakefront public walkway and park. The remaining acreage would be acquired for construction staging activities. Once vacated, these remnant properties would become available for residential and commercial development.

The South Lake project site comprises nearly 54 acres about one block below Rialto Street on the north, Mill Street on the south, Interstate 215 on the west and G street on the east. The majority of this land is vacant, and there are four single-family residences. South Lake would include 13 acres of open space, including 5 acres for a lake or wetlands, and 450,000 square feet of office space.

The project schedule anticipates that land acquisition, design review and construction will take about seven years.

B

The Environmental Review Process

In September 2004, a draft program EIR was distributed for public review, and several public workshops were held, including one in Spanish.

The draft EIR stated that removal of the former Stephens & Bobbitt Mortuary clearly constitutes an adverse effect on a historical resource. It called for the building to be relocated as mitigation, and recommended nearby locations as possible sites.

The draft program EIR also identified certain unavoidable significant effects which could not be feasibly mitigated. This included the removal of some 437 housing units. According to the program EIR, implementation of the North Lake program would physically divide an established community . . . that is currently a residential neighborhood and would displace a substantial number of people, housing and businesses.

The draft program EIR identified a smaller North Lake alternative, with a 34 acre lake, as the environmentally superior alternative because 111 fewer dwelling units would be demolished. The report cautioned, however, that this smaller lake alternative fails to provide sufficient opportunities for redevelopment and reinvestment into the existing community and partially fails in limiting the spread of blight in the North Lake area. More importantly, the report concluded, the smaller lake alternative does not provide the [District] with the same water storage capacity that the proposed Project provides.

In March 2005, the Citys Planning Commission held a noticed public hearing on the program EIR. The City mailed notices to all affected property owners, and published a display notice in the local newspaper. The commission heard testimony for and against the project. By a five-to-one vote, it recommended that the City certify the program EIR.

On April 25, 2005, the District and the City jointly held a noticed hearing of the Citys common council and the Districts board of directors to consider certification of the final program EIR. The hearing lasted some four-and-a-half hours.

Valerie Ross, a city planner, testified that the full 82 acres in the North Lake project were necessary for staging and construction purposes, although the District later would dispose of these remnant properties when construction was completed. She recommended that the City not consider designating potential land use designations until after final engineering because the actual shape and size of the lake . . . as shown on the plan there . . . could be modified through the final engineering process.

Adams and Abdullah testified against approval of the final program EIR, with their counsel asking: [I] think these people are entitled to an answer to the question when you force them out of their neighborhood, where do they go? Other residents spoke about their love for their homes and neighborhood. We dont want to see our homes destroyed. I moved there because I figured we were going to live there forever. I do not want to move.

The agencies also heard testimony favoring the project as a needed catalyst. Water elements have enabled other cities to attract new business such as restaurants, theaters, shops, and recreation. [O]nce you create a synergism of the Lakes, it will flow downtown and bring other people like us who are . . . looking to build affordable projects . . . . A rabbi quoted from the visionary words of the biblical prophet who said, You shall draw waters with joy from the springs of salvation and the wells of deliverance.

Following the close of testimony, the District directors unanimously voted to certify the final program EIR, adopt the mitigation monitoring reporting plan and the facts, findings and statement of overriding consideration.

As to the City, common council member Susan Lien Longville moved to substitute the smaller 34-acre North Lake alternative because it will indeed enhance our city, its fiscally more conservative because it combines preservation and redevelopment. Why destroy all the good older land uses and drop a suburban-style development in the middle of the urban core of our city? She questioned whether the excess land surrounding the larger lake would ever be redeveloped because of the huge source of funding that would be necessary to compensate the Water District for the money it has spent. And that is why in the EIR there is absolutely no guarantee that there ever will be any redevelopment in those twenty-five [remnant] acres.

Longvilles amendment failed by a four-to-three vote. The council went on to approve, by a five-to-two vote, Resolution 2005-97, which certified the final program EIR, and adopted the facts, findings and statement of overriding consideration. The resolution also amended the Citys general plan by vacating several public streets within the North Lake area. The resolution tabled consideration of any land use changes for the remnant properties surrounding North Lake.

The agencies approval of the program EIR does not end the formal environmental review process. Since the agencies already have received at least $1.4 million in federal funds and anticipate requesting additional sums in the future, they will be required to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA), 42 U.S.C.  4321 et seq.[4]

C

The Litigation

Adams filed her verified petition for writ of mandate on May 27, 2005. Abdullah and the other plaintiffs filed a similarly worded petition on the same day. All plaintiffs prayed for a peremptory writ of mandate to compel the agencies to rescind Resolution 2005-97 and to prepare, circulate and consider a legally adequate EIR . . . .

On January 11, 2006, the lawsuits were concurrently tried before Judge Wade. The agencies emphasized that there would be future environmental reviews. This is a program EIR. It is a first step in a number of activities. There will be innumerable subsequent CEQA activities and probably a number of subsequent EIRs.[5]

Judge Wade found the agencies had complied with CEQA, and their actions were supported by the evidence. Separate judgments denying the petitions were filed in the spring of 2006.

II

Standard of Review

We exercise de novo review under CEQA to determine whether the agencies have employed the correct procedures, and independently examine the administrative record to determine whether it contains substantial evidence to support their factual determinations. Plaintiffs bear the burden of establishing that the EIR is legally inadequate or that the record lacks substantial evidence to support the decision. ( 21168; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427 (Vineyard I); El Morro Community Assn. v. California Dept. of Parks & Recreation (2004) 122 Cal.App.4th 1341, 1359 (El Morro).)

In reviewing for substantial evidence, we may not set aside an agencys approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable, for, on factual questions, our task is not to weigh conflicting evidence and determine who has the better argument. (Vineyard I, supra, 40 Cal.4th at p. 435.) Since the agencies are the finders of fact, we indulge all reasonable inferences from the evidence to support their administrative findings and determination, and resolve all conflicts in the evidence in their favor. We give substantial deference to the agencies decisions, and presume them to be correct. (Sierra Club v. County of Napa(2004) 121 Cal.App.4th 1490, 1497; see also Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 792.)

Plaintiffs have a duty to set forth in their briefs all the material evidence on their legal points, not merely their own evidence. In Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 (Defend the Bay), we stated, As with all substantial evidence challenges, an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellants failure to carry his burden.

Each legal point in their briefs should appear under a separate heading or subheading and be supported by argument or authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) We may disregard any claims that are perfunctorily asserted, without adequate development. (Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482 (Tilbury Constructors); Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [Mansell]; see also People v. Gidney (1937) 10 Cal.2d 138, 142 [chastising appellants failure to provide any citation of authority, except Carl Sandbergs Life of Lincoln].)

Plaintiffs have fallen woefully short of meeting these burdens. The administrative record alone in this CEQA proceeding is daunting, consuming some 10,000 pages in 28 separate volumes. Plaintiffs duty to comply procedural requirements increases with the size and complexity of the record. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 153 Cal.App.4th 238 (Vineyard II).)

Despite this, plaintiffs opening briefs contain stream-of-consciousness discursions into neighborhood history and the history of the former Stephens & Bobbitt Mortuary, with few citations to the administrative record or discussion of the project. Their legal discussion fares little better. The briefs contain a laundry list of generalized objections to the Program EIR and the process by which it was adopted. Numerous issues, while identified, are left unanalyzed. Plaintiffs compounded these shortcomings by gambling on their defective opening briefs and by declining to file reply briefs.

We have ample cause to affirm the judgments for these reasons alone. (Tilbury Constructors, supra, 137 Cal.App.4th at p. 482; Defend the Bay, supra, 119 Cal.App.4th at p. 1266; Mansell, supra, 30 Cal.App.4th at pp. 545-546.) The appellate court is not required to search the record on its own seeking error. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)

III

Impact on Historical Resources

In her separate appeal, Adams places great weight upon the extra-record evidence that [t]he State of California listed the Stephens & Bobbitt Mortuary on the California Historic Register on August 5, 2005 for both historic and cultural qualities. Adams never offered any evidence of such registration, and this event, which took place four months after approval of the program EIR, is not properly before us. It is incumbent upon Adams to place any evidence she believes is pertinent to the agencies certification of the final program EIR into the administrative record before they reached their decision. (El Morro, supra, 122 Cal.App.4th at pp. 1359-1360.)

Ultimately, however, this is a distinction without a difference. Regardless of the state historical designation, the program EIR did treat the potential impact to the former mortuary as potentially being of historical significance. In its words, demolition of this building clearly constitutes an adverse effect on a historical resource.

To avoid or lessen this adverse impact on a historical resource, the program EIR required that [it] be rehabilitated or relocated (possibly to the vacant property located near 8th, 9th, and H Streets) and that historical and architectural data . . . be recorded. (Italics added.) Potential significant impacts to an historical resource can be mitigated below a level of significance where it meets certain rehabilitative criteria. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 695 (San Franciscans) [substantial evidence supported citys findings that proposed project mitigated damage to historic department store by preserving the most significant architectural and historic elements of the Emporium Building while revitalizing a major downtownarea at a cost the City could afford].)

Adams challenges the efficacy of the recommended mitigation. She states that given the style and text of the edifice, it is clear to almost any observer that it cannot successfully be moved. Physical location, she asserts is patently not feasible.

What may be clear to any observer is not clear to us. Our vision is limited to what we see in the record. Adams points to nothing in the administrative record to indicate that the former mortuary cannot be relocated. Our own analysis of the record indicates a letter from Adams counsel stating, without any explanation, that this matter is unknown. That is not a sufficient basis to establish infeasibility.[6]

We do not read the program EIR as giving the agencies a choice either to relocate the mortuary or, as Adams contends, to take a lot of photos and bulldoze this fine 77-year-old edifice. The agencies themselves disagree with plaintiffs assertion: These mitigation measures do not allow Respondents to pick and choose whatever mitigation measures they may prefer, but require that the buildings be considered for relocation and rehabilitation, as well as being fully documented.

A picture may well be worth a thousand words, but photographs or film cannot be reasonably construed to mitigate demolition. Documentation of the historical features of the building and exhibition of a plaque do not reasonably begin to alleviate the impacts of its destruction. A large historical structure, once demolished, normally cannot be adequately replaced by reports and commemorative markers. (League for Protection of Oaklands etc. Historic Resources v. City of Oakland(1997) 52 Cal.App.4th 896, 909.)

Even in a YouTube era, virtual reality, as the California Supreme Court has reminded us, remains an oxymoronic phrase. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1360-1361; see also Architectural Heritage Assoc. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1119 [As drawing a chalk mark around a dead body is not mitigation, so archival documentation cannot normally reduce destruction of an historic resource to an insignificant level].)

The agencies cannot ignore the mitigating conditions in the final program EIR for relocation and recordation. Mitigating conditions are not mere expressions of hope. Section 21002.1, subdivision (b) states: Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so. . . . The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. (Lincoln Place Tenants Assn. v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1508 (Lincoln Place).)

If, upon further review, it turns out that the recommended mitigation measures are impractical or unworkable, then the agencies can seek to modify or delete them through a supplemental environmental analysis. This would require a determination, based on substantial evidence, that the previously adopted mitigation measures are infeasible, and that the projects specific benefits outweigh those environmental effects that no longer feasibly can be mitigated. (See discussion in Lincoln Place, supra, 130 Cal.App.4th at pp. 1508-1509.)

Again, the agencies concur about their ongoing obligations to reexamine the issue of potential impact to historically significant structures like the former Stephens & Bobbitt Mortuary when the proposed project moves beyond its current speculative stage. [T]he very nature of a Program EIR provides that once the actual layout and design of a project (here, the reservoir and related development) is determined, any potential impacts must be revisited and mitigation measures provided, that are feasible at the time of the approval of the actual development.

It is the implementation of the recommended mitigating measures that sustains the finding that the North Lake Projects effect on historical resources will be mitigated to a less than significant level. We see no error in the agencies determination.

IV

Impact on Housing

All plaintiffs challenge the program EIRs supposed failure to address the horrendous impacts that will be inflicted by uprooting 437 homes (some 2,000 people), without hard, stable information of what the future may hold. Plaintiffs, in particular, fault the EIR for: (1) not disclosing where the persons and businesses so displaced will be relocated and at what cost, (2) not considering the environmental impacts of replacement housing and (3) failing to provide any meaningful mitigation. Missing are any detailed studies of the scope of over 400 properties proposed to be taken and the scope of realistic mitigation of the unavoidable significant impact, i.e. what property is available for relocation, how distant is it, and how much will it cost.

None of these objections holds water. The program EIR was anything but pusillanimous, never sugarcoatingthe adverse environment impact to the existing 82‑acre community of homes, apartments and businesses that would disappear to make room for the North Lake project. It portrays, in stark terms, a socioeconomic picture of the neighborhood and the environmental consequences of the project, including the division of an existing community. The discussion on housing is prominent and frank and the nature of the proposed change is made clear in language that leaves little doubt of the magnitude and significance of the change. (See Defend the Bay, supra, 119 Cal.App.4th at p. 1273.)

So stated, CEQAs fundamental informational purposes have been served: the policymakers (which here include the elected members of the San Bernardino Common Council) have been provided with a full understanding of the environmental consequences of their decisions, and, equally important, that the public is assured those consequences have been taken into account. (Vineyard I, supra, 40 Cal.4th at p. 449.) Indeed, a good part of the joint public hearing on April 25, 2005 consisted of pointed reminders to common council members about their electability.

That is precisely as it should be. [I]t is the public agency that bears the responsibility for the decisions that must be made before a project can go forward, including determinations of feasibility and whether the benefits of a project outweigh the significant effects the project will have on the environment. (Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1503.)

Our review on this appeal is confined to whether an EIR is sufficient as an informational document. . . . CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. (Defend the Bay, supra, 119 Cal.App.4th at p. 1265.) We decide only the sufficiency of the EIRs environmental conclusions, and only then in the specific context of the legal arguments raised by appellants. [I]t is not our function to second-guess the Citys decision. Rather, our role is to determine if the conclusion reached by the City has support in the record. It does. (Id., at p. 1267.) As the trial court found, the statement of overriding consideration adequately discusses the effect on housing.

We see no error in the agencies discussion of mitigation. There is substantial evidence in the record to support the program EIRs determination that the at this time, it does not appear that [the District] will need to provide for any new replacement housing construction as part of the mitigation of the reduction of dwelling units available for occupancy by lower income households for the reasons set forth in the EIR. (Italics added.) In other words, new housing units will not need to be constructed as a result of displacement resulting from the North Lake Area Project.[7]

Equally significant, the program EIR adopted mitigation measures to ensure that all displaced residents would be able to obtain comparable and affordable replacement housing at prices they could afford. The replacement housing needs of affected residents will be identified, actual relocation cost estimates will be prepared and the existence of an adequate supply of comparable and affordable relocation or replacement dwellings will be determined as part of the Authority preparation of the required relocation plan. Comparability was required with respect to size, quality of construction, proximity to employment, and such neighborhood amenities as schools and public services. Relocation responsibilities included construction of any new housing, if required. (Italics added.) The relocation plans were designed to ensure that displaced residents would be able to obtain comfortable homes at affordable prices or rental rates [b]efore any acquisition program begins . . . . (Italics added.)

We do not find this discussion to be too vague or imprecise. The agencies committed themselves to preparing a site-specific relocation plan, including an affordable housing study, before any properties would be acquired. Plaintiffs contend that the Citys current statistics on vacancy rates are universally stale, because real estate values in San Bernardino have skyrocketed and the availability of affordable housing has dramatically shrunk. If significant new information thereafter develops to indicate the need to construct new affordable housing to replace any demolished units, then additional environmental reviews would be necessary before any such land acquisitions could proceed. (See discussion in El Morro, supra, 122 Cal.App.4th at p. 1361.) Exercising our de novo review, we echo Judge Wades observations that the District need not work out relocation details now at this stage. As the trial court noted, the District considered that . . . there would be adequate housing for displaced individuals as well as the eminent domain compensation and relocation procedures.

V

Consistency With General Plan

Plaintiffs argue the program EIR conflicts with the Citys general plans emphasis on preservation of affordable existing single family units. Our review of the claimed inconsistency is hampered by plaintiffs failure to cite to where in the administrative record their claimed reference to the general plan can be found. In like fashion, plaintiffs have never filed a request for judicial notice of the Citys general plan, even though this deficiency was identified in respondents brief. We fail to understand how we possibly can review this point.

Moreover, as the record indicates and as Judge Wade noted in his ruling, the Citys goal of preserving existing affordable housing is not so restrictive as to housing preservation as petitioners contend. The general plan contains multiple goals, including achieving a pattern and distribution of land uses which provide for revitalization, adaptive reuse and upgrade of deteriorated neighborhoods and districts.

There does not appear to be serious dispute in the record that the neighborhoods immediately surrounding the North Lake area are blighted. The program EIR asserts that many of the housing units that would be demolished are in poor condition. The entire North Lake Area Project site is within either the Uptown Redevelopment Area or the Inland Valley Redevelopment Area, the intent of which is to eliminate and prevent the spread of blight in the Plan area. According to the program EIRs analysis of long-term implications, [p]roject implementation would halt deterioration of the North Lake Area by replacing blighted neighborhoods, strip commercial, and visually unattractive uses with new residential, public (i.e., lake), and commercial uses.

Rather than questioning the existence of blight in the North Lake project area, plaintiffs attribute it to the result of the threat of eminent domain which has been hanging over these peoples heads for many years.

A project is consistent with a general plan if it furthers the plans objectives and policies and does not obstruct their attainment. We give great deference to the agencies discretionary weighing of the range of competing goals and interests in a general plan. (Sierra Club v. County of Napa, supra, 121 Cal.App.4th at pp. 1509-1511; San Franciscans, supra, 102 Cal.App.4th 656, 677-678.) We are not dealing with assaying of minerals here. Balance does not require equivalence, but rather a weighing of pros and cons to achieve an acceptable mix. (Defend the Bay, 119 Cal.App.4th at pp. 1268-1269.) We cannot say that the agencies assessment of the risks and benefits of the Lakes Project equates to inconsistency with the general plans goals and objectives, as we know them.

VI

Impact from Construction Activities

Plaintiffs claim the agencies violated CEQA guidelines because the program EIR never offered any specific mitigation of the environmental impacts from construction. In a factual dispute over whether adverse effects have been mitigated or could be better mitigated, we review the agencies conclusions only for substantial evidence. (Vineyard I, supra, 40 Cal.4th at p. 435.)

The project EIR recognized that dust, vehicle emissions, grading and disposal activities would significantly affect air quality, vegetation, wildlife, noise, and solid waste disposal. These adverse environmental impacts would persist, even after the inclusion of feasible mitigation measures.

Ironically, it was to mitigate these construction-related impacts that the project EIR recommended a larger, but shallower 44 acre lake, with the surrounding acreage to be cleared of existing structures to accommodate construction staging activities, equipment and soil stockpiling areas, and grading and construction. North Lake reservoir construction would take several years, and considering the extensive demolition, grading and construction activities, the applicant has indicated a need for an adequate buffer area to allow construction staging and related activities. . . . . Excluding lands along the project perimeter, such as along H Street, would . . . make North Lake reservoir construction more difficult and expose more persons to construction related impacts (by retaining these residential land uses adjacent to a long-term construction effort) . . . .

Other construction mitigation included screening (such as fences, landscaping, setback requirements) to lessen visual and noise impacts from construction, a haul route (as identified by the city traffic engineer in consultation with CalTrans), and other measures relating to air quality, biology, noise and public safety.

Other than identifying the issue of construction-related mitigation, plaintiffs offer no analysis or discussion on the subject, and do not attempt to respond to the points raised by the agencies. As with plaintiffs other perfunctory assertions, we deem the issue waived. (Tilbury Constructors, supra, 137 Cal.App.4th at p. 482; Defend the Bay, supra, 119 Cal.App.4th at p. 1266; Mansell, supra, 30 Cal.App.4th at pp. 545-546.)

VII

The Mulvihill and Longville Critiques

Plaintiffs take the agencies to task for failing and refusing to consider and respond to the critiques of the Lake Project made by James L. Mulvihill, a professor at California State University, San Bernardino, and Susan Longville, a member of the Citys common council.

Plaintiffs do not specify which of Mulvilhills comments were inadequately addressed. Without appropriate direction from plaintiffs, we are clueless why they contend the agencies missed the boat. We do not serve as backup appellate counsel, or make the parties arguments for them. (Mansell, supra, 30 Cal.App.4th at p. 546.) The issue is waived.[8]

Plaintiffs provide a larger helping of Longvilles comments, but again in raw and undigested form. They offer a short synopsis of her passionate comments, urging us to read them in their entirety in the administrative record. Without amplification, plaintiffs simply assert that the agencies failed and refused to properly consider the items listed above.

Plaintiffs make no effort to reframe Longvilles statements into legal arguments, or to integrate any CEQA statutes, guidelines or case law. Many of her comments (like a knife in the heart of progress in San Bernardino) involve policy decisions that properly rest with those agencies whose determinations are being reviewed. (See Defend the Bay, supra, 119 Cal.App.4th at p. 1269.) Indeed, while Longville could not support the preferred alternative, she did so even though, in her words, the EIR does address the environmental impacts of building that project.

We will not act as plaintiffs counsel by reviewing Longvilles comments and recasting them into a legally discernable form. In this case, Instead of a fair and sincere effort to show that the trial court was wrong, appellants brief is a mere challenge to respondents to prove that the court was right. . . . An appellant is not permitted to evade or shift his responsibility in this manner. (Vineyard II, supra, 153 Cal.App.4th at p. 245.)

Disposition

The judgment is affirmed. Costs on appeal are awarded to respondents and real party in interest.

SILLS, P.J.

WE CONCUR:

RYLAARSDAM, J.

MOORE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1]CEQA is codified in Public Resources Code sections 2100 et seq. All further statutory references are to the Public Resources Code, unless otherwise indicated. The administrative guidelines implementing CEQA (Cal. Code Regs., tit. 14, 15000 et seq.), will be referred as Guidelines, section. . . .

[2] The third agency, the Inland Valley Development Agency (IVDA), was formed in 1990 to redevelop the shuttered Norton Air Force Base and surrounding properties. The North Lake project area lies wholly within either the IVDAs redevelopment project area or the Uptown redevelopment project area.

[3]Under the Guidelines, a program EIR may be prepared on a series of actions that can be characterized as one large project and are related as logical parts in the chain of contemplated actions. (Guidelines,  15168(a); see discussion in Natural Resources Defense Council, Inc. v. City of Los Angeles (2002) 103 Cal.App.4th 268, 281-285.)

[4] Although the state and federal environmental laws are similar, some EIS requirements under NEPA are more stringent than their counterparts under CEQA. According to the program EIR, two of these areas involve project alternatives and social justice. NEPA requires an evaluation of all reasonable alternatives and these must be analyzed in greater detail than required by CEQA. NEPA requires that each alternative be analyzed to the same level of detail, while CEQA requires less detailed analysis of alternatives as compared to the preferred alternative. . . . NEPA requires social and economic impacts to be analyzed where they have a related physical or human impact. . . . By contrast, CEQA requires that social and economic impacts be studied only when they have a direct or indirect physical impact.

[5] Counsel reiterate these same assurances on appeal: [T]he adoption of the program EIR [does] not permit the demolition or development of any real property. Indeed, it [does] not even allow any portion of the proposed reservoir to move forward without there first being additional environmental review, after an actual firm design for the Project has been developed and finalized.

[6]In a letter dated April 18, 2005, Adams counsel wrote We do know that, if the project remains as proposed, the Stephens & Bobbitt Mortuary cannot remain on its current site. The unknown is whether it will be fairly relocated or demolished. (Italics added.)

[7]The program EIR determined that the environmental impact from the demolition of these 437 structures, while clearly significant, was ameliorated somewhat by the high vacancy rates within the City. Based on then-current data, the analysts determined there to be an 11 percent vacancy rate within the City, amounting to a total of some 7,000 vacant housing units, many of which were located in low-income neighborhoods. According to city planner Valerie Ross, even if all of the people that would be displaced and relocated from the North Lake Area project into the city, that would still leave our vacancy rate at, approximately, ten percent. It would not barely touch it.

[8] Mulvihill criticized the agencies for failing to consider a substitute location for North Lake (within the Lytle Creek area) that he believed to be preferable because it would not displace any residents. But substantial evidence in the record indicates that Mulvihill's proposed alternative was infeasible because it would be much closer to the San Jacinto fault and in a flood plain. Both of those aspects would not be desirable for the Lake. Mulvihill never addressed the seismic issue. An EIR is not required to address an alternative that will not feasibly obtain most of the project's basic objectives. (Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1509.)