By Janell M. Bogue

A recent opinion from the Court of Appeal, Fourth Appellate District, Division Two discusses two important CEQA topics: certainty in project descriptions and an EIR’s discussion of alternatives. Save Round Valley Alliance v. County of Inyo (December 17, 2007) 2007 Cal.App.LEXIS 2045. In this case, the developer proposed a rural large-lot subdivision located on 74 acres on the road to the trailhead to Mount Whitney in Inyo County (“County”). The lots, used for single family homes, would be a minimum of 2.5 acres in size. The proposed use of the property was consistent with the County General Plan and the zoning code. Further, the subdivision would be governed by CC&Rs restricting the use of the lots. The County determined that an EIR was necessary for the project and the EIR concluded that there would be substantial adverse effects on the scenic vistas. The Planning Commission certified the EIR, adopted a statement of overriding considerations, and approved the project. A local citizens’ group called Save Round Valley Alliance (“SRVA”) appealed the Planning Commission’s approval and following a public hearing, the Board of Supervisors denied the appeal, certified the EIR, and approved the project. SRVA petitioned for a writ of mandate, which was denied by the Inyo County Superior Court.  SRVA appealed.

Project Description

In the EIR, the project was described as a 27-lot single family residence development. In its comments on the EIR, SRVA stated that the description was insufficient because future owners of the lots could apply to build a secondary dwelling unit (commonly known as “granny flats” or “mother-in-law quarters”). Government Code section 65852.2 was enacted to prevent overly excessive restrictions on the building of these kinds of second units. The County’s zoning code, adopted to implement the state statute, allowed granny flats with a conditional use permit in the Rural Residential zone. SRVA’s argument followed that the EIR should analyze the project as one for 54 dwelling units, rather than a 27-lot subdivision, since every landowner could build a second dwelling unit.

The Court of Appeal agreed with the County, however, and held that the potential future addition of secondary dwellings by future homeowners was simply too speculative to require CEQA analysis.  The court said,

Whether a conditional use permit to build a second unit will ever be sought depends initially upon the desires of future lot owners, who are unknown. Although a conditional use permit can be sought for a second unit, there is no factual basis for believing that a future lot owner is likely to do so. Any conclusions about their intentions to build second units would therefore be pure speculation. There is simply nothing in the record (other than SRVA’s speculative comment) to remotely suggest that any future lot owner would ever desire to build a second unit. Nor does the proposed tentative tract map or the CC&R’s suggest the possibility of building second units…Finally, even if the building of some second units might be foreseeable, it is impossible to predict how many units will be built, the size of such units, on which lots they might be built, their location within a lot, the visibility of a second unit from outside the subdivision, or how such units might impact the environment. (Cf. Friends of the Sierra Railroad v. Tuolumne Park & Recreation Dist. (2007) 147 Cal.App.4th 643, 651, 657 [54 Cal. Rptr. 3d 500] [even though prediction of some future development was not speculative, EIR was not required when there were “no specific plans on the table”].) In light of such uncertainty and unpredictability, we conclude the County acted well within its discretion in describing the project without reference to the possibility that future owners will build second dwelling units on the lots.

This passage may be the most important precedent from this decision because it provides guidance on the previously common conundrum among planners of how to assess the impacts of potential granny flats pursuant to Government Code section 65852.2. The court provided guidance to planners and those preparing EIRs by stating that “an appropriate response to a suggestion that the project description include possible future uses based entirely upon speculation is to simply reject such speculation as such; no reports, studies, or expert opinions are required to reject baseless assertions.” 

Alternatives Analysis

SRVA also argued that the analysis of alternatives to the proposed project was inadequate. CEQA Guidelines section 15126.6 requires a discussion of the “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 of the project…” The DEIR concluded that the environmentally superior alternative would be the “no project” alternative. CEQA Guidelines section 15126.6(e)(2) states that when the no project alternative is the environmentally superior one, the EIR “must also identify an environmentally superior alternative among the other alternatives.” A land exchange was identified as the next superior alternative. The EIR stated that a land exchange with the Bureau of Land Management (“BLM”) would avoid the proposed project’s visual impacts. However, the DEIR said that the BLM did not view the project site as a candidate for a land exchange and thus this alternative was infeasible.

The FEIR contained a letter from the local BLM Field Manager, indicating that the project proponent, not the BLM, rejected the idea of a land exchange. The letter stated, “BLM deals with willing sellers only.” Nevertheless, the Field Manager stated that had the project proponent “expressed interest in a potential land exchange at any time, BLM certainly would have entertained it.” The FEIR also contained a letter from the project proponent stating that the BLM parcel was not acceptable to him because it did not have the same amenities as the project site, including proximity to running water, views, and appropriate zoning. Responding to SRVA’s comments that there was insufficient information about the BLM alternative, the FEIR stated that the alternative parcels did not have comparable views or proximity to water which were integral to the project according to the proponent. “Compared with the proposed [project site], the applicant could not expect to achieve the same project or economic objectives with this offered parcel.” Finally, the County stated that the BLM parcel was not designated in the general plan or zoned as residential. For these reasons, the County concluded that the alternative was infeasible.

The appellate court emphasized that local agencies must analyze feasible alternatives. “Feasible, in this context means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” The local agency must make the determination of whether an alternative is feasible and even potentially feasible alternatives must be thoroughly discussed. The reasons for rejecting an alternative must be explained in the EIR. Citing Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, the appellate court said, “Although the level of detail will vary depending upon an alternative’s potential for feasibility, in every case, the EIR must disclose the ‘analytic route the…agency traveled from evidence to action.’” 

Here, the court held that the EIR’s discussion of the BLM land exchange alternative was defective. The DEIR’s assertion that the BLM was not interested in the land swap was in conflict with the Field Manager’s letter. The inconsistency with the general plan was a factor in evaluating feasibility, but should not have been determinative. The court emphasized time and again that the County must independently analyze the alternatives to the proposed project and show how it came to that decision. Instead, this EIR was overly reliant up on the applicant’s assessment of feasibility.  The discussion of the BLM land did not describe the potential site’s hydrology or physical features. “The public and decision makers are told virtually nothing meaningful about the BLM parcel…” The court said that the County’s statements regarding the feasibility of the BLM land exchange were based on the project proponent’s statements. “[T]he agency preparing the EIR may not simply accept the project proponent’s assertions about an alternative; rather, the agency must independently participate, review, analyze and discuss the alternatives in good faith.” There was no evidence as to the economic viability of the alternative site and no analysis of the comparative costs of the proposed site and the BLM site. The lack of evidence and the over-reliance on the project proponent’s statements were fatal and the appellate court reversed the trial court’s finding that the EIR was sufficient. However, the court offered no opinion as to whether the land exchange is actually feasible and said:

An adequate analysis of the BLM parcel alternative may well reveal that developing the project on that parcel is not feasible for one or more reasons…However, this EIR includes only the barest facts regarding the BLM parcel, vague and unsupported conclusions about aesthetics, views, and economic objectives, and no independent analysis whatsoever of relevant considerations. In this respect, the County failed to proceed in the manner required by law.

The guidance provided by the appellate court on the discussion of alternatives in an EIR should be read carefully by local agencies and EIR preparers. This case, along with Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, illustrates the amount of evidence and the level of analysis that a local agency should include in an EIR to ensure sufficiency under CEQA. 

Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and 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.