Petitioners Fail to Demonstrate that the City Failed at the Two-Step

By Leslie Z. Walker

In California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, the Sixth District Court of Appeals upheld an Environmental Impact Report (“EIR”) for the master plan of a greenbelt, against appellant’s attack on the range of alternatives and findings of infeasibility.

I.          Background

The City of Santa Cruz (“City”) began the planning process for the greenbelt, the Arana Gulch Master Plan in 2003 (the “Project”).  Arana Gulch is a 67.7 acre City-owned property.  Key components of the Project, as stated in the draft master plan and the EIR, are resource protection and enhancement, including preservation and restoration of Santa Cruz tarplant populations; and public use, including Americans with Disabilities Act (“ADA”)-compliant trails.

The draft EIR evaluated four project alternatives and concluded that the fourth alternative, an unpaved trail system would be the environmentally superior alternative.  However, the alternative would not meet two of the Project objectives: 1) providing ADA-compliant, multi-use trails, and 2) providing a new west entrance to Arana Gulch.

The City Council certified the EIR and adopted the findings of fact and statement of overriding considerations.  The findings of fact conclude that each of the alternatives analyzed in the EIR is “infeasible for failure to satisfy the project objectives on policy grounds.”  The statement of overriding considerations identified, “economic, social, or other benefits that render acceptable the significant and unavoidable effect on the Santa Cruz tarplant including improved access for people with disabilities and trail connections to coastal resources.”

Petitioners challenged the Project approval in superior court.  The Court denied the petition and appellants appealed, claiming the City’s adoption of a statement of overriding considerations “sand-bagged” the public because the City had already told them feasible alternatives existed.  Appellants further claimed the City was required to include off-site alternatives for ADA-compliant trails because that was a key component of the Project.

II.        Feasibility Analysis 

The Court began by clarifying that the feasibility of the alternatives is considered at two different points, with two different standards, in the EIR process.  “The issue of feasibility arises at two different junctures,” said the Court, “(1) in the assessment of alternatives in the EIR and (2) during the agency’s later consideration of whether to approve the project.”  When the question is whether to include an alternative in the range of alternatives in the EIR, the standard is whether the alternative is potentially feasible.”(Emphasis in original.)  Later, at the project approval phase, the question is whether the alternatives are actually feasible.  (Emphasis in original.)

When considering the range of alternatives, the EIR does not need to consider every conceivable alternative, “[r]ather, it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation."  (Guidelines, § 15126.6, subd. (a).)

When considering whether to approve the project, the agency may approve the project despite unmitigated significant environmental impacts identified in the EIR, only if it finds that “specific economic, legal, social, technological, or other considerations . . . make infeasible the mitigation measures or alternatives identified in the environmental impact report.  (§ 21081, subd. (a)(3); Guidelines, 15091, subd. (a)(3).)”  Here, “the rejected alternatives must be ‘truly infeasible,’” and the agency must explain in meaningful detail the reasons and facts supporting the conclusion that the rejected alternative is infeasible.

If a public agency adopts a project despite the significant unavoidable environmental impacts, the public entity must make express written determination the project’s benefits outweigh any potential environmental harm.

II. Range of Alternatives 

Appellants claimed the range of alternatives was unreasonable because the alternatives did not all contain ADA-compliant paths and the EIR did not analyze an off-site ADA-compliant trail alternative.  With respect to the first claim, the Court explained that the range of alternatives is judged against the rule of reason.  Quoting Federation of Hillside and Canyon Associates v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1265, the Court said “the selection will be upheld unless the challenger demonstrates that the alternatives are manifestly unreasonable and do not contribute to a reasonable range of alternatives.”  Because the ADA-compliant path was only one of the ten project objectives, the City was reasonable in looking at alternatives that did not contain it.

With respect to the second claim, the Court stated that “there is no rule requiring an EIR to explore off-site project alternatives in every case.”  Quoting Guidelines section 15126.6 subd. (b) and Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 491, the Court explained:

“An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects to the project, and evaluate the comparative merits of the alternatives.  The Guidelines . . . do not require analysis of off-site alternatives in every case.”

Further, the Court explained that the City was not required to look at an off-site alternative for only the ADA-compliant path. The EIR guidelines require an EIR to describe alternatives to the proposed project.  “That requirement is applicable only to the project as a whole, not the various facets thereof . . .”Big Rock Mesas Property Owners Assn. v. Board of Supervisors (1977) 73 Cal.App.3d 218, 227.

III. Feasibility

With respect to the City’s conclusion that no feasible alternatives would avoid the environmental impacts to the tarplant, the Court explained that the decision makers may reject as infeasible an alternative that does not satisfy the objectives associated with the project.  This decision encompasses the desirability of the project, “to the extent that the desirability is based on a reasonable balancing of relevant economic, environmental, social and technological factors.”  The Court explained that the decision-making body can reject the alternatives presented in the EIR without undermining the validity of the EIR’s alternatives analysis.  At the final stage of approval, the decision-making body is looking at whether the project is actually feasible  “Broader considerations of policy . . . come into play when the decision-making body is considering the actual feasibility than when the EIR preparer is assessing potential feasibility of the alternatives.”

The Court upheld the City’s decision that alternatives were infeasible, based on policy considerations.

IV. Conclusion

In sum, the Court clarified the two-step feasibility analysis, explaining that the first step is the determination by the agency staff of whether an alternative should be included.  The second step is the agency’s policy based decision of whether any of the studies alternatives accomplishes the objectives of the project.  The Court found that the petitioners failed to put forward sufficient evidence to show that the City had erred in either step of its analysis.

Leslie Z. Walker is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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