Joshua v. San Francisquito Creek Joint Powers Authority CA1/2 ( 2022 )

Filed 8/23/22 Joshua v. San Francisquito Creek Joint Powers Authority CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
PETER JOSHUA,
Plaintiff and Appellant,
A163294
v.
SAN FRANCISQUITO CREEK (San Mateo County
JOINT POWERS AUTHORITY, et Super. Ct. No. 19CIV06305)
al.,
Defendants and Respondents.
Appellant Peter Joshua filed an unsuccessful petition for a writ of
mandamus alleging that the San Francisquito Creek Joint Powers Authority
(SFCJPA) failed to comply with the California Environmental Quality Act
(Pub. Res. Code, § 21000 et seq.) (CEQA) in preparing an Environmental
Impact Report (EIR) in connection with a project to make certain
improvements to protect from floods in the San Francisquito creek watershed
(the project). He argues that the EIR failed to consider a reasonable range of
alternatives to the project because certain alternatives were part of the
SFCJPA’s overall program, that another alternative considered in the EIR
was invalid because it did not lessen the environmental impacts of the
project, and that the statement of overriding considerations adopted by the
1
SFCJPA failed to find certain of the alternatives infeasible. We reject the
arguments, and we affirm.
BACKGROUND
Against a history of flooding, the SFCJPA developed the “San
Francisquito Creek Flood Protection, Ecosystem Restoration, and Recreation
Project Upstream of Highway 101.” And, following rigorous CEQA review,
the project culminated in a lengthy EIR, which EIR provided an excellent
background of the setting here. We thus begin with extensive quotation from
that EIR:
“San Francisquito Creek originates in the eastern foothills of the Santa
Cruz Mountains and drains a watershed that is approximately 45 square
miles in size, from Skyline Boulevard to San Francisco Bay. The watershed
contains three reservoirs (Searsville, Lagunita, and Felt) and several
tributary creeks, including Los Trancos, West Union, Alambique, Bear, and
Corte Madera Creek as well as many smaller tributaries that drain into the
creeks. San Francisquito Creek begins at the confluence of Corte Madera
Creek and Bear Creek, just downstream of Searsville Dam, and flows
through Stanford University and the communities of Menlo Park, Palo Alto,
and East Palo Alto to San Francisco Bay. San Francisquito Creek represents
the boundary between Santa Clara and San Mateo Counties and the cities of
Menlo Park, Palo Alto, and East Palo Alto. The watershed’s 5-square-mile
floodplain is located primarily within these cities.”
“For this Program EIR, San Francisquito Creek is described in three
reaches (Figure 1-2). Reach 1 extends from San Francisco Bay to the
upstream side of U.S. Highway 101. SFCJPA has completed construction of
improvements in Reach 1 following the completion of CEQA documentation
in 2012. This Program EIR does not include proposed actions in Reach 1,
2
though the upstream end of Reach 1 may be traversed for construction access
to a channel-widening site within Reach 2 (Site 5). Reach 2 extends from the
upstream side of the frontage road to U.S. Highway 101 (West Bayshore
Road) to the upstream side of the Pope-Chaucer Bridge. Reach 3 begins on
the upstream side of the Pope-Chaucer Bridge and extends throughout the
upper watershed.”
“Flooding from the creek is a common occurrence, including twice
within the past decade. The largest flow recorded since [record keeping]
began in 1930 occurred in February 1998, when the creek overtopped its
banks in several areas, affecting approximately 1,700 . . . propert[ies.]” That
event is now considered by SFCJPA and the Corps to have been
approximately “a 70-year flood, [relative] to the commonly referenced
[standard of a] 100-year flood event.[1]”
The EIR thus described the specific objectives of the project as follows:
“Protect life, property, and infrastructure from floodwaters exiting the
creek during flows up to 7,500 cubic feet per second (cfs), while minimizing
impacts of the project on adjacent communities and the environment;
“Enhance habitat within the project area, particularly interconnected
habitat for threatened and endangered species;
“Create new recreational opportunities and connect to existing bike and
pedestrian corridors;
“Minimize operational and maintenance requirements; and
“Not preclude future actions to bring cumulative flood protection up to
a 100-year flow event.”
1 The 100-year flood is considered to have a 1 percent chance of
occurring in any given year.
3
The EIR explained how the SFJCPA evaluated the project and various
alternatives to it, including the following regarding how the process began
with a list of 17 potential projects:
“For the past two decades, members of the public, local agency staff
members, and the U.S. Army Corps of Engineers have been analyzing the
capital improvements necessary to protect communities within the flood-
prone Reach 2 of San Francisquito Creek, upstream of U.S. Highway 101.
The three fundamental approaches to providing flood protection—contain,
detain, or bypass—with the specific alternatives proposed for analysis,
include:
“Enable the creek to contain higher flows during storms by removing
constrictions or raising the height of the creek bank in the floodplain area
(Alternatives 2, 5, 6, 7, 8, 10, 11, 12, and 17),
“Temporarily detain or store portions of high flows during storms
through one or more floodwater detention facilities in Reach 3 (Alternatives
3, 9, 13, and 16), and/or
“Remove a portion of the high flows immediately upstream of Reach 2,
route that portion of the flow through the flood-prone area in an
underground bypass channel, and deposit this water at a location in the creek
that can safely convey it to San Francisco Bay (Alternatives 4, 14, and 15).”
The SFJCPA went on to screen the 17 alternatives as follows:
“Alternatives 2 through 17 were evaluated using a two-round approach.
In Round 1 (Table 2-1), alternatives were evaluated for their ability to meet
the project objectives. None of the alternatives would preclude future actions
to bring cumulative flood protection up to a 100-year flood event and
therefore this objective was not evaluated. Alternatives that could not
4
achieve project objectives were excluded from further consideration (i.e.,
screened out). The alternatives that could potentially meet project objectives
were subject to feasibility evaluation in Round 2 (Table 2-2).”
“The previous screening process examined how well each of the 17
alternatives met the project objectives, and then the cost, and logistical and
technical feasibility, of the remaining alternatives.
“The following alternatives advanced through this screening process:
“Alternative 2: Replace the Pope-Chaucer Bridge and Widen Channel
Downstream.
“Alternative 3: Construct One or More Detention Basins.
“Alternative 5: Replace the Pope-Chaucer Bridge and Construct
Floodwalls Downstream.
“As described below, these alternatives were grouped according to the
reaches in which they primarily occur, then re-organized and renamed. This
EIR analyzes Alternative 3 (from this point forward referred to separately as
the Former Nursery Detention Basin Alternative and the Webb Ranch
Detention Basin Alternative) at a programmatic level because, in concert
with the alternatives proposed in Reach 2, they would help to the overall
objective of protecting people and property from water resulting from at least
a 100-year event by increasing the conveyance and/or detention of water.
Additionally, this EIR conducts a more detailed project level analysis for
Alternative 2 and Alternative 5 to enable the implementation of the first
phase of work immediately upstream of the highway to allow the creek to
contain (and thus protect communities there from) flows up to the 1998 flood
event level. These alternatives also advance local priorities of enhancing
creek habitat and recreational opportunities.”
5
“Within Reach 2, Alternatives 2 and 5 advanced for full analysis in the
EIR. Alternative 2 was renamed the Channel Widening Alternative, and
Alternative 5 was renamed the Floodwalls Alternative. Both alternatives
include replacing the Pope-Chaucer Bridge and widening the channel
immediately upstream of U.S. Highway 101 (Site 5) to align the channel with
the recently completed modifications to the bridge at the highway’s West
Bayshore frontage road. Where Alternatives 2 and 5 differ is in how they
achieve flood protection between those two locations. The Channel Widening
Alternative would involve primarily creek channel widening, replacing
decades-old sacked concrete walls with more vertical, architecturally treated
soil nail walls or sheet pile walls. The Floodwalls Alternative would involve
construction of floodwalls at the top of the creek’s banks. Finally, both
alternatives would include construction of creekside parks and aquatic
habitat enhancements and potentially creekside parks (Figures 2-1 and 2-2).”
“Within Reach 3, Alternative 3 advanced for full analysis in the
Program EIR. Alternative 3 was split into two alternatives, each
representing one of the two potential detention basin sites. The potential
detention basin at the previous site of Boething plant nursery is called the
Former Nursery Detention Basin Alternative and the potential detention
basin at Webb Ranch is called the Webb Ranch Detention Basin Alternative.”
And so the EIR went to fully analyze 5 potential projects: the
statutorily-required “No-Project” alternative, the Channel Widening
Alternative, the Floodwalls Alternative, and two detention basin alternatives:
the Former Nursery Detention Basin Alternative and the Webb Ranch
Detention Basin Alternative. Based on this analysis, the EIR deemed the
Channel Widening Alternative the “Preferred Project,” and adopted the
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following statement of overriding considerations recommending that it be
approved:
“In light of the environmental, social, economic, and other
considerations identified below and supported by the substantial evidence in
the EIR, the SFCJPA chooses to approve the proposed project because, in its
view, such benefits substantially outweigh the significant and unavoidable
adverse environmental effects. The following statements identify the reasons
why, in the SFCJPA’s judgment, the benefits of the project outweigh the
significant and unavoidable effects. Each of the overriding considerations set
forth below constitutes a separate and independent ground for finding that
the benefits of the project outweigh its significant adverse environmental
effects and is an overriding consideration warranting approval:
“1. The proposed project would restore San Francisquito Creek to its
natural capacity throughout the project reach; this improved hydrologic
functioning provides long-term benefits to aquatic species.
“2. The proposed project would restore aquatic habitat by installing
permanent woody debris, boulders, pools, and other features to
approximately 1,800 linear feet of the channel at widening sites and the
Pope-Chaucer Bridge. These elements, together with the improvements in
hydrologic function in the project reach, will provide long-term benefits to
salmonids and other aquatic species.
“3. The proposed project will provide flood protection benefits to over
4,000 homes, businesses, and schools in the San Francisquito Creek
floodplain. Although implementation of this project by itself will not
completely remove the affected area from the FEMA 100-year flood zone, it
will protect life, property, and infrastructure from the largest recorded flood
7
flow and reduce damages during higher flows. Thus, it is a key piece of
SFCJPA’s long-term comprehensive flood protection strategy.
“4. The proposed project will create recreational opportunities by
connecting the new features to existing bike and pedestrian corridors and
potentially constructing two creekside parks.
“In summary, in consideration of the existing flood risks along San
Francisquito Creek associated with lack of adequate capacity in the Creek
channel, and the analysis of project outcomes presented in the Final EIR,
SFCJPA finds that the economic, social, and environmental benefits of
meeting the project’s goals and objectives outweigh the significant and
unavoidable noise and cumulative air quality impacts associated with the
project’s construction.”
At a public meeting on September 26, 2019, the SFCJPA certified
the EIR, adopted the statement of overriding considerations, and
approved the project.
On October 24, Joshua filed a petition for writ of mandamus
challenging that approval, alleging a single cause of action for alleged
violations of CEQA.
The petition came on for hearing on March 25, 2021, at the conclusion
of which the trial court took the matter under submission. On June 4, the
trial court issued an order denying the writ petition in its entirety.
Judgment was entered on July 9, from which Joshua filed a notice of
appeal.
DISCUSSION
Applicable Law
“As a general proposition, CEQA depends on the EIR. ‘An
environmental impact report is an informational document,’ the purpose of
8
which ‘is to provide public agencies and the public in general with detailed
information about the effect which a proposed project is likely to have on the
environment; to list ways in which the significant effects of such a project
might be minimized; and to indicate alternatives to such a project.’ (Pub.
Resources Code, § 21061.)[2] According to our Supreme Court: ‘The purpose
of an EIR is to give the public and government agencies the information
needed to make informed decisions, thus protecting “ ‘not only the
environment but also informed self-government.’ ” [Citation.] The EIR is the
heart of CEQA, and the mitigation and alternatives discussion forms the core
of [an] EIR.’ (In re Bay–Delta Etc. (2008) 43 Cal.4th 1143, 1162.)” (Tiburon
Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, 724–
725 (Tiburon Open Space).)
“The judicial attitude to EIRs is deferential. ‘A court’s task is not to . . .
determine who has the better argument when the dispute is whether adverse
effects have been mitigated or could be better mitigated. We have neither the
resources nor [the] scientific expertise to engage in such analysis . . . .’
(Laurel Heights [Improvement Assn. v. Regents of University of California
(1988)] 47 Cal.3d 376, 393.) It follows that courts ‘do not require technical
perfection or scientific certainty.’ (Sierra Club v. County of Fresno (2018)
6 Cal.5th 502, 515.)
2 “Statutory references are to this code unless otherwise indicated. . . .
We will abbreviate citations to the regulations promulgated by the Secretary
of the Natural Resources Agency found in title 14 of the California Code of
Regulations beginning at section 15000, as ‘Guidelines’ which, we have noted,
‘are binding upon all state and local agencies in applying CEQA.’
(Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245, 1256,
fn. 12.)”
9
“The scope of judicial scrutiny proceeds along two paths.
‘ “Section 21168.5 provides that a court’s inquiry in an action to set aside an
agency’s decision under CEQA ‘shall extend only to whether there was a
prejudicial abuse of discretion. Abuse of discretion is established if the
agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.’ As a
result of this standard, ‘The court does not pass upon the correctness of the
EIR’s environmental conclusions, but only upon its sufficiency as an
informative document.’ [Citation.]” [Citation.] “We may not set aside an
agency’s approval of an EIR on the ground that an opposite conclusion would
have been equally or more reasonable.” [Citation.] [¶] “An appellate court’s
review of the administrative record for legal error and substantial evidence in
a CEQA case, as in other mandamus cases, is the same as the trial court’s:
The appellate court reviews the agency’s action, not the trial court’s decision;
in that sense appellate judicial review under CEQA is de novo.” [Citation.]’
(In re Bay–Delta Etc., supra, 43 Cal.4th 1143, 1161–1162.)
“ ‘The agency is the finder of fact and a court must indulge all
reasonable inferences from the evidence that would support the agency’s
determinations and resolve all conflicts in the evidence in favor of the
agency’s decision. . . . “A court’s task is not to weigh conflicting evidence and
determine who has the better argument when the dispute is whether adverse
effects have been mitigated or could be better mitigated. We have neither the
resources nor scientific expertise to engage in such analysis, even if the
statutorily prescribed standard of review permitted us to do so.” [Citation.]
“[T]he relevant inquiry here is not whether the record establishes compliance
but whether the record contains evidence [the agency] failed to comply with
the requirements of its . . . regulatory program. In the absence of contrary
10
evidence, we presume regular performance of official duty. (Evid. Code,
§ 664.)” ’ (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006)
140 Cal.App.4th 911, 918–919.)
“Every court ‘presumes a public agency’s decision to certify the EIR is
correct, thereby imposing on a party challenging it the burden of establishing
otherwise.’ (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530.)
Conversely, courts refuse to presume administrative error, still less that it is
prejudicial. (§ 21005, subd. (b).) In fact, ‘errors in the CEQA . . . process
which are insubstantial or de minimis are not prejudicial.’ (Environmental
Protection Information Center v. California Dept. of Forestry & Fire Protection
(2008) 44 Cal.4th 459, 486; see Neighbors for Smart Rail v. Exposition Metro
Line Construction Authority (2013) 57 Cal.4th 439, 463 [‘Insubstantial or
merely technical omissions are not grounds for relief’].)
“Legal error, in the form of failure to comply with CEQA, is reviewed
independently, but all factual determinations are reviewed according to the
substantial evidence standard. ‘The substantial evidence standard is applied
to conclusions, findings and determinations. It also applies to challenges to
the scope of an EIR’s analysis of a topic, the methodology used for studying
an impact and the reliability or accuracy of the data upon which the EIR
relied because these types of challenges involve factual questions.’
(Bakersfield Citizens for Local Control v. City of Bakersfield (2004)
124 Cal.App.4th 1184, 1198.)” (Tiburon Open Space, supra, 78 Cal.App.5th
at pp. 727–728, fn. omitted.)
The range of alternatives included in an EIR must be “potentially
feasible alternatives that will foster informed decisionmaking and public
participation.” (Guidelines, § 15126, subd. (a).) “An EIR shall describe a
range of reasonable alternatives to the project . . . which would feasibly attain
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most of the basic objectives of the project but would avoid or substantially
lessen any of the significant effects of the project, and evaluate the
comparative merits of the alternatives.” (Ibid.; see Preservation Action
Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1350.)
“ ‘Both the California and the federal courts have further declared that
“[t]he statutory requirements for consideration of alternatives must be judged
against a rule of reason.” ’ ([Citizens of] Goleta [Valley v. Board of Supervisors
(1990)] 52 Cal.3d [553,] 565.) We uphold an agency’s selection of alternatives
unless it is ‘manifestly unreasonable’ or inclusion of an alternative does not
‘[contribute to] a reasonable range of alternatives.’ (Ibid.)” (Bay Area
Citizens v. Ass’n of Bay Area Governments (2016) 248 Cal.App.4th 966, 1018.)
The rule of reason “requires the EIR to set forth only those alternatives
necessary to permit a reasoned choice” and to “examine in detail only the
ones that the lead agency determines could feasibly attain most of the basic
objectives of the project.” (Guidelines, § 15126.6, subd. (f).)
The Detention Basin Alternatives Are Not Invalid
Joshua’s first argument is that the detention basin alternatives are
“not valid” because they are not stand-alone projects but rather “future
components of the overall Program and SFCJPA strategy,” pointing to certain
acknowledgements in the record that the projects in Reach 2 would
“complement” or work “in concert” with the detention basin proposals in
Reach 3. We reject the argument.
First, Joshua is simply wrong that the detention basin alternatives
could not have been stand-alone projects. It was plainly possible to build
detention basin facilities in Reach 3 without also completing the project.
Indeed, the draft EIR notes that the “detention basins at Searsville, Webb
Ranch, and the former plant nursery represent potentially feasible
12
alternatives that would, as a stand-alone project, provide real flood
protection.” A December 19, 2016 revised notice of preparation for the draft
EIR explained: “In its Draft EIR, the SFCJPA will evaluate the No Action
alternative and four other alternatives, each of which could be implemented
as a stand-alone project to meet the objectives listed above.” And a March 6,
2017 letter from the California Department of Fish and Wildlife to the
SFCJPA stated: “Each of the Project alternatives is intended to be a stand-
alone project that could be implemented subsequent to the existing Project to
provide greater flood protection in the future.” Finally, the EIR itself
expressly acknowledges that either detention basin alternative “could be
implemented as a stand-alone project with no downstream improvements, or
as a complementary project after downstream improvements are made.” In
short, the record amply supports the conclusion the detention basin
alternatives were stand-alone projects.
Joshua also argues that the EIR in this case does not provide an
“accurate, stable, and finite project description” (County of Inyo v. City of Los
Angeles (1977) 71 Cal.App.3d 185, 193), because, as his brief puts it, the EIR
“analyz[es] options that are components of the current Project, rather than
alternatives to the Project.” Not so. The EIR provides a 47-page description
of the project and its impacts, including clearly defining the “[m]ajor
elements” of the Project as “Replacing Pope-Chaucer Bridge,” “Downstream of
that bridge, widening the Creek channel and replacing the wooden
University Avenue Bridge parapet extension,” “Enhancing habitat within the
project area,” and “Creating new recreational opportunities and connect to
existing bike and pedestrian corridors.” The project is also clearly defined as
the channel widening alternative from the first round of alternative selection.
In short, despite the EIR’s occasional suggestion that the project’s goals could
13
be complemented or supplemented by the detention basin alternatives in
Reach 3, the EIR does not fail to provide an accurate or stable project
description.
Tuolumne County Citizens for Responsible Growth, Inc. v. City of
Sonora (2007) 155 Cal.App.4th 1214, cited by Joshua, is not to the contrary.
There, the city planning commission approved the proposed home
improvement center on the condition that the project proponents also perform
a road realignment. (Id. at pp. 1219–1220.) The court concluded that
because the “project cannot be completed and opened legally without the
completion of the road realignment,” the road realignment and the home
improvement center were one project for the purposes of CEQA. (Id. at
pp. 1227–1231; see id. at p. 1229 [“ ‘Courts have considered separate
activities as one CEQA project and required them to be reviewed together
where . . . both activities are integral parts of the same project [Citation]’
[Citation]”].) Such is plainly not the case here, where the project was neither
legally nor practically conditioned on the detention basin alternatives in
Reach 3—indeed, the EIR expressly stating the opposite, calling the
detention basin alternatives “stand-alone” projects.3
3 For similar reasons, we find unavailing Joshua’s reliance on cases
holding that “[a] public agency is not permitted to subdivide a single project
into smaller individual sub-projects in order to avoid the responsibility of
considering the environmental impact of the project as a whole. ‘The
requirements of CEQA “cannot be avoided by chopping up proposed projects
into bite-size pieces which, individually considered, might be found to have no
significant effect on the environment or to be only ministerial.” [Citation.]’
(Topanga Beach Renters Assn. v. Department of General Services (1976)
58 Cal.App.3d 188, 195–196.)” (Orinda Assn v. Bd. of Supervisors (1986)
182 Cal.App.3d 1145, 1171.) Such is not the case here, where the project was
clearly defined and the detention basin alternatives expressly acknowledged
to be stand-alone projects.
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Joshua Has Failed to Exhaust Administrative Remedies With
Respect to His Argument Regarding the Floodwalls Alternative
Joshua’s next argument is that the floodwalls alternative is “invalid”
because it does not lessen the environmental impact of the project—instead,
the EIR concluded that “[t]he Floodwalls Alternative would have impacts
similar to the proposed project but over a much greater area along and at the
top of the creek banks. Therefore, this alternative would have greater
impacts overall than the proposed project.”
Joshua has failed to demonstrate that he exhausted his administrative
remedies with respect to this argument.
“ ‘In brief, the rule [of the exhaustion of administrative remedies] is
that where an administrative remedy is provided by statute, relief must be
sought from the administrative body and this remedy exhausted before the
courts will act.’ [Citation.] The rule is a jurisdictional prerequisite in the
sense that it ‘is not a matter of judicial discretion, but is a fundamental rule
of procedure laid down by courts of last resort, followed under the doctrine of
stare decisis, and binding upon all courts.’ [Citations.]” (Citizens for Open
Government v. City of Lodi (2006) 144 Cal.App.4th 865, 874, quoting
Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.)
Section 21177 addresses the exhaustion of remedies in CEQA cases. It
provides that no action or proceeding may be brought alleging non-
compliance with CEQA unless (1) the alleged grounds for noncompliance
“were presented to the public agency orally or in writing by any person
during the public comment period provided by this division or before the close
15
of the public hearing on the project before the issuance of the notice of
determination” and (2) the person bringing the action “objected to the
approval of the project orally or in writing during the public comment period
provided by this division or before the close of the public hearing on the
project before the filing of notice of determination.” (§ 21177, subds. (a), (b).)
“The rationale for the rule is that an agency is entitled to learn the
contentions of interested parties before litigation arises, so it will have an
opportunity to address the contentions and perhaps render litigation
unnecessary. (Mani Brothers Real Estate Group v. City of Los Angeles (2007)
153 Cal.App.4th 1385, 1394.) To advance this purpose an interested party
must present the exact issue to the administrative agency that is later
asserted during litigation or on appeal. (Ibid.) General objections,
generalized references or unelaborated comments will not suffice. (Porterville
Citizens for Responsible Hillside Development v. City of Porterville (2007)
157 Cal.App.4th 885, 910.) ‘ “[T]he objections must be sufficiently specific so
that the agency has the opportunity to evaluate and respond to them.”
[Citation.]’ (Id. at p. 909.)” (Hagopian v. State of California (2014)
223 Cal.App.4th 349, 371.)
The petitioner bears the burden of demonstrating exhaustion of
administrative remedies. (Evans v. City of San Jose (2005) 128 Cal.App.4th
1123, 1136.) And we employ a de novo standard of review when determining
whether the exhaustion of administrative remedies doctrine applies. (Ibid.)
Joshua’s only argument that he exhausted his administrative remedies
with respect to his challenge to the floodwalls alternative is that it is
somehow encompassed within his argument the EIR did not include the
required “range of reasonable alternatives.” (See Guidelines, § 15126.6 (a).)
His reply brief goes on to make reference to places in the record where he
16
made his argument, rejected above, that the Reach 2 and Reach 3
alternatives were “intertwined.” But he nowhere identifies in the record any
challenge to the floodwalls alternative, never mind the specific challenge he
now raises. Instead, as noted, he points to general comments that the “Reach
2 and Reach 3 projects are intertwined,” a comment by the Regional Board
that the “DEIR should be revised to include . . . more robust description of the
[SFC]JPA’s analysis of potentially feasible alternatives,” and an assertion
that the California Department of Fish and Wildlife “offered comment on the
alternatives, including the Floodwalls Alternative.” Obviously, these general
comments did not “present the exact issue to the administrative agency” and
were not “sufficiently specific so that the agency has the opportunity to
evaluate and respond to them.” (Hagopian v. State of California, supra, 223
Cal.App.4th at p. 371.) Joshua has failed to carry his burden to demonstrate
that he exhausted his administrative remedies with respect to his challenge
to the floodwalls alternative.
The EIR Considered Alternatives Other Than the No Project
Alternative
Joshua’s next argument—an argument that occupies only two
paragraphs in his opening brief—is that since the detention basin
alternatives and the floodwalls alternative were not “valid,” the No Project
alternative is the “only true alternative remaining,” and thus the EIR failed
to consider a reasonable range of alternatives. Because we have rejected
Joshua’s argument that the detention basin alternatives were invalid, this
argument necessarily fails as well.4
4 In addition, as the SFCJPA observes, an EIR that considers only the
no project alternative does not necessarily fail to consider a reasonable range
of alternatives. (See Save Our Access-San Gabriel Mountains v. Watershed
17
The SFCJPA Did Not Abuse Its Discretion In Adopting the
Statement of Overriding Considerations
Joshua’s final argument is that the SFCJPA abused its discretion in
adopting the statement of overriding considerations without first making the
requisite findings that the alternatives were “infeasible.” By no means.
“ ‘An agency may not approve a project that will have significant
environmental effects if there are feasible alternatives or feasible mitigation
measures that would substantially lessen those effects. (§§ 21002, 21002.1,
subd. (b); Guidelines, § 15021, subd. (a)(2); Mountain Lion Foundation v. Fish
& Game Com. (1997) 16 Cal.4th 105, 134.) An agency may find, however,
that particular economic, social, or other considerations make the
alternatives and mitigation measures infeasible and that particular project
benefits outweigh the adverse environmental effects. (§ 21081, subds. (a)(3),
(b); Guidelines, § 15091, subd. (a)(3).) Specifically, an agency cannot approve
a project that will have significant environmental effects unless it finds as to
each significant effect, based on substantial evidence in the administrative
record, that (1) mitigation measures required in or incorporated into the
project will avoid or substantially lessen the significant effect; (2) those
measures are within the jurisdiction of another public agency and have been
Conservation Authority (2021) 68 Cal.App.5th 8, 31 [“Plaintiff contends
CEQA, the Guidelines, and Supreme Court case law require an EIR to
analyze more than the ‘no project’ alternative. That is not correct”]; San
Franciscans for Liveable Neighborhoods v. City and County of San Francisco
(2018) 26 Cal.App.5th 596, 633 [“ To the extent SFLN would have us
conclude, as a matter of law, that consideration in the EIR only of a proposed
project and a no project alternative is inadequate, we reject that contention”];
Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210
Cal.App.4th 184, 196–199.) Joshua does not offer any response to these
cases, except to assert that they are “factually distinct,” without explaining
how.
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adopted, or can and should be adopted, by that agency; or (3) specific
economic, legal, social, technological, or other considerations make the
mitigation measures or alternatives identified in the EIR infeasible, and
specific overriding economic, legal, social, technological, or other benefits
outweigh the significant environmental effects. (§§ 21081, 21081.5;
Guidelines, § 15091, subds. (a), (b).) A finding that specific overriding project
benefits outweigh the significant environmental effects (§ 21091, subd. (b)) is
known as a statement of overriding considerations. (Guidelines, § 15093.)’ ”
(Tiburon Open Space, supra, 78 Cal.App.5th at pp. 725–726.)
The EIR concluded that, even with mitigation measures, the
“[c]onstruction activities proposed as part of the project would temporarily
increase emissions in pollutants of concern,” and “the impact of the project’s
construction activities on cumulative air quality impacts is expected to be
significant and unavoidable.” “Primarily due to their more remote locations,
both the Former Nursery Detention Basin Alternative and the Webb Ranch
Detention Basin Alternative are estimated at this time to have fewer/less
potential impacts on the following resources than the proposed project: []
Aesthetics [] Air Quality [] Hazardous Materials and Public Health [] Noise
and Vibration [] Recreation [] Transportation and Traffic
[and] Utilities and Service Systems.”
However, the EIR went on:
“Between the Former Nursery Detention Basin Alternative and Webb
Ranch Detention Basin Alternative, the Former Nursery Detention Basin
Alternative would result in fewer impacts because the nearest noise-sensitive
land uses to this alternative are 400 feet away. The Webb Ranch Detention
Basin Alternative is within 35 feet of the nearest sensitive land uses;
therefore construction of this alternative is expected to expose persons to
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greater noise and vibration impacts relative to the Former Nursery Detention
Basin Alternative.
“The Former Nursery Detention Basin Alternative in consideration of
basin sizing could not provide as much flood protection, as quickly, or provide
similar benefits to aquatic species (e.g., salmonid habitat), as the proposed
project. However, information available to date indicates that the Former
Nursery Detention Basin Alternative would have less environmental impacts
than the proposed project on many resources. For these reasons, the Former
Nursery Detention Basin Alternative is identified as the environmentally
superior alternative. However, by itself, this alternative cannot achieve the
benefits of the proposed project in terms of the level of flood control that could
be achieved (one basin could achieve a peak flow reduction of 800–1,000 cfs
versus the proposed project, which could achieve a reduction of 1,800 cfs).
Further, this alternative would not achieve the same level of benefit as the
proposed project in terms of habitat enhancement. These benefits include
improvement of hydrologic functions through channel widening and
construction of habitat enhancement features. For these reasons, the Former
Nursery Detention Basin Alternative was not selected.”
Joshua’s complaint with the EIR is essentially that it did not expressly
state that the detention basin alternatives were “infeasible”—indeed, his
reply brief styles his argument as “SFCJPA Cannot Point to Any Language in
the Statement of Overriding Considerations Showing That the Board of
Directors Made a Finding of Infeasibility Regarding Project Alternatives.”
But although the EIR did not use the word “infeasible,” it makes clear that
the SFCJPA rejected the detention basin alternatives because they “cannot
achieve the benefits of the proposed project in terms of the level of flood
control,” and “would not achieve the same level of benefit as the proposed
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project in terms of habitat enhancement.” In other words, the SFCJPA found
the detention basin alternatives infeasible for “policy reasons,” including that
the alternatives would not achieve the desired project objectives. This was a
proper basis for a finding of infeasibility under CEQA. (See California Native
Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 1000–1002
[no abuse of discretion in finding alternatives were infeasible because “they
failed to achieve what the Council regarded as primary objectives of the
[project]”]; San Diego Citizenry Group v. County of San Diego (2013) 219
Cal.App.4th 1, 18 [county properly determined within its discretion that
alternatives were infeasible because “none would achieve the core objectives
to the same extent as the Project”].) And Joshua’s disagreement with this
decision amounts to a policy disagreement with the SFJCPA—a
disagreement that does not demonstrate an abuse of discretion. (See
California Native Plant Society v. City of Santa Cruz, supra, 177 Cal.App.4th
at p. 1001 [appellants’ challenge to infeasibility determination “represents
nothing more than a ‘policy disagreement with the City’ ”]; San Diego
Citizenry Group v. County of San Diego, supra, 219 Cal.App.4th at p. 18
[plaintiff’s “disagreement with the [agency]’s policy determination is not a
basis for setting aside the [EIR]”.)
Joshua’s reliance on City of Marina v. Board of Trustees of California
State University (2006) 39 Cal.4th 341 is unavailing. There, the defendant
trustees sought to expand a small college campus into a larger institution on
a former Army base, and prepared an EIR that found in relevant part that
contributions to the Ford Ord Reuse Authority could mitigate certain of the
project’s environmental impacts, but that such contributions would amount
to an assessment prohibited by the state Constitution and constitute a gift of
public funds and thus be unlawful, such that mitigating the effects through
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contributions was “infeasible” for “legal” reasons. (Id. at 351–353.) Our
Supreme Court considered the legal question of whether the contributions
were unlawful under de novo standard of review, concluding that they were
not and that the trustees had therefore abused their discretion. (Id. at
p. 355.) In so doing, the court expressly noted that the case involved a purely
legal question, and not “factual and environmental conclusions in the EIR
based on conflicting evidence” to which the court would owe “much deference”
under the abuse of discretion standard of review. (Ibid.) By contrast, in this
case, the SFCJPA’s finding that the detention basin alternatives were
infeasible is a “factual and environmental conclusions in the EIR based on
conflicting evidence,” and we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
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_________________________
Richman, Acting P. J.
We concur:
_________________________
Miller, J.
_________________________
Mayfield, J. *
Joshua v. San Francisquito Creek Joint Powers Authority (A163294)
*Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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