Sustainability, Parks, Recycling & Wildlife Legal Defense Fund v. San Francisco Bay Conservation & Development Commission , 172 Cal. Rptr. 3d 110 ( 2014 )

Filed 4/29/14 SPRAWLDEF v. San Francisco Bay Conservation and Development Commission CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SPRAWLDEF et al.,
Plaintiffs and Respondents,
A137619
v.
SAN FRANCISCO BAY (Solano County
CONSERVATION AND Super. Ct. No. FCS039863)
DEVELOPMENT COMMISSION et al.,
Defendants and Appellants,
WASTE CONNECTIONS, INC.,
Real Party in Interest and Appellant.
Solano County and the San Francisco Bay Conservation and Development
Commission approved permits to allow real party in interest Waste Connections, Inc. to
expand the Potrero Hills Landfill, which is situated within the secondary management
area of the Suisun Marsh. The permits were issued after years of environmental review
and litigation under the California Environmental Quality Act (CEQA; Pub. Resource
Code, § 2100 et seq.).
In the instant writ proceeding, petitioners contend the permit approvals violate the
Sonoma County Local Protection Plan and, specifically, a county ordinance, because the
expansion will entail some rechanneling of an ephemeral watercourse called Spring
Branch. Under that ordinance, modification of a marsh watercourse is allowed only if no
1
“reasonable alternative” exists. Petitioners claim the Commission could have, and should
have, approved a smaller expansion that would not impinge on the intermittent
watercourse. The trial court agreed, ruling no substantial evidence supports the
Commission’s determination that a smaller alternative is not economically reasonable.
The Commission and real party have appealed. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Potrero Hills Landfill is located in the upland, grassland area—or “secondary
management area”—of the Suisun Marsh. The landfill site is currently 320 acres in size.
The expansion, as proposed in 2003, would allow an increase in fill height and also add
260 acres of adjoining property to the site—extending the life of the landfill another 35
years. The proposed expansion would also have a number of environmental impacts,
including impinging on and requiring the alteration of a portion of an intermittent
watercourse, Spring Branch. Decades ago, relocation of another portion of Spring
Branch was deemed consistent with applicable laws, and permitted in connection with the
landfill.
County’s Approval of Permits
In early 2003, the county gave notice it would prepare an environmental impact
report (EIR) for the proposed landfill expansion. The draft EIR, published later that year,
concluded relocating a portion of the Spring Branch watercourse would not have a
significant environmental impact if certain mitigation measures were adopted.1 In part,
this conclusion was based on a finding the watercourse was then “devoid of riparian
vegetation.” The draft EIR also concluded the project was consistent with the Suisun
1
The draft EIR described Spring Branch as “[a]n ephemeral surface water runoff
channel.”
2
Marsh Preservation Act of 1977 (Pub. Res. Code, § 29000 et seq.)2 and the Solano
County Local Protection Plan.
The draft EIR evaluated one alternative to the proposed expansion project:
increasing the height of the landfill, without increasing the footprint. This alternative was
rejected because it would still require excavation of the adjacent land, would not
appreciably reduce environmental impacts, and would, with a significantly reduced fill
capacity, undermine the project goals. Offsite alternatives were not considered in detail,
since any new site was likely to raise issues similar to those facing the proposed
expansion.
Two years later, in September 2005, after receiving and responding to comments,
the county certified a final EIR and issued a use permit and marsh development permit
for the proposed expansion (Nos. U-88-33 and MD-88-09).
Under the Suisun Marsh Preservation Act, a decision by a local government to
issue a marsh development permit can be challenged in two ways. One provides for
tiered agency, and then court review. The challenger first appeals to the San Francisco
Bay Conservation and Development Commission, the body with ultimate responsibility
for implementing the Act. (§§ 29106, 29504, subd. (a).) If the challenger remains
aggrieved after the Commission’s decision on appeal, the challenger “may seek judicial
review . . . by filing a petition for a writ of mandate in accordance with the provisions of
Section 1094.5 of the Code of Civil Procedure within 60 days after such decision or
action has become final.” (§ 29602.) The other avenue allows for direct review by the
courts. The challenger may seek “judicial review of any decision made or any action
taken pursuant to this division by a local government that is implementing the certified
local protection program, or any component thereof, whether or not such decision or
2
All further statutory references are to the Public Resources Code unless
indicated.
3
action has been appealed to the commission, by filing a petition for writ of mandate in
accordance with the provisions of Section 1094.5 of the Code of Civil Procedure within
60 days after the decision or action has become final.” (§ 29603.)
Petitioner David Tam took both paths.
The Prior “Protect the Marsh” Writ Proceeding
In October 2005, Tam and others filed a writ proceeding in Solano County
Superior Court, Protect the Marsh v. County of Solano (case No. FCS026839). The first
amended petition not only challenged the adequacy of the county’s EIR (first cause of
action) it, in separate causes of action, sought to invalidate the marsh development permit
as noncompliant with the county’s general plan (second cause of action) and zoning
regulations (third cause of action), and the Suisun Marsh Preservation Act, Suisun Marsh
Protection Plan, and Solano County Local Protection Plan (fourth cause of action).
Among other things, the amended petition specifically alleged the alteration of Spring
Branch was inconsistent with the local protection plan. As required by section 29603
(authorizing direct judicial review of a marsh permitting decision), Tam and the other
petitioners in Protect the Marsh gave the Commission notice of the writ proceeding. The
Commission could have sought to intervene (§ 29603), but apparently did not.
The trial court issued its decision in the prior Protect the Marsh writ proceeding
on February 26, 2007. It ruled two findings in the EIR, unrelated to Spring Branch, were
not supported by substantial evidence. It also faulted the EIR for not considering
alternative landfill sites outside of the marsh. The court rejected the remainder of the
petitioners’ claims, also ruling that the modification of the Spring Branch watercourse
was not inconsistent with any governing plan or regulatory requirement. This writ
decision was not appealed.
During 2007 and 2008, the county revised, re-circulated, and re-certified the EIR.
The revised EIR included a 50-page discussion of, and reasons for rejecting, 20 non-
marsh locations for a new landfill in lieu of expanding the existing landfill. The trial
4
court determined the discussion and rejection of one of the locations was inadequate and
therefore refused to approve the county’s return to the writ.
The county spent another year making additional revisions, and on November 3,
2009, the trial court approved its return to the writ. SPRAWLDEF, which had not been a
party to the writ proceeding, purported to appeal this order, but its appeal (No. A127688)
was dismissed for lack of standing.
The Appeal to the Commission
The same month Tam and others filed the Protect the Marsh writ proceeding, he
and others also filed administrative appeals of the marsh development permit with the
Commission. Although Tam did not contend the relocation of the Spring Branch
watercourse was inconsistent with applicable state and local laws, other appellants did.
In December 2005, the Commission concluded the appeals raised substantial
issues, triggering de novo review of the county’s approval of the marsh development
permit. (See §§ 29523, 29524.) Accordingly, in addition to considering the existing
administrative permit record and a wide range of documents related to other agencies’
analysis and approval of the project,3 the Commission undertook its own investigation of
the project and retained a panel of scientists to prepare a report on ecological impacts to
the marsh. The nearly 200-page report was completed in 2007.
Assessing Spring Branch, the 2007 scientists’ report found the intermittent
watercourse had a bed and banks. It also found wetland vegetation within the
watercourse, differing from the 2005 hydrology report prepared in connection with the
3
The Commission received copies of reports and analyses submitted to and
generated by numerous governmental bodies related to the expansion project, including:
the county’s EIR and related documents; reports to the U.S. Army Corps of Engineers on
project alternatives, impacts, and mitigation measures; and voluminous materials from
the Bay Area Quality Management District, California Department of Fish and Game,
California Integrated Waste Management Board, California Regional Water Quality
Control Board, and U.S. Fish and Wildlife Service.
5
county’s EIR and other reports submitted to the Commission by real party. The
scientists’ report, which the Commission ultimately credited, recommended modified
mitigation measures, including having the rechanneled watercourse more closely mimic
the native one, employing better monitoring of water quality, and seeking preservation of
similar areas within the Spring Branch watershed. In light of the new information and
proposals in connection with Spring Branch, the Commission asked real party to explore
reducing the size of the expansion.
The size of the landfill was addressed in a 2009 report on alternatives real party
prepared and submitted to the Army Corps of Engineers, whose approval was also
required for the proposed expansion. The report was eventually filed with the
Commission and part of the universe of materials referenced by staff during the
administrative proceeding.
The 2009 report analyzed 16 off-site alternatives and four on-site alternatives and
compared them to the proposed expansion which would increase the capacity of the
landfill by about 41.43 million tons (61.6 million cubic yards), at a unit cost of $2.66 per
ton ($110 million), and extend the life of the landfill by 35 years. The first on-site
alternative increased only the height of the landfill. This would increase the capacity by
only 8.04 million tons (12 million cubic yards), at a unit cost of $3.04 per ton ($24.7
million), and add only seven years to the life of the landfill. As had been noted in the
EIR, this alternative would likely require excavation of soil surrounding the Spring
Branch watercourse, creating some environmental impacts in the area. The second on-
site alternative called for a 112-acre (rather than 167-acre) expansion of the landfill
footprint, without additional height. This would increase the landfill capacity by 10.08
million tons (15 million cubic yards), at a cost of $8.54 per ton ($86.1 million), and add
about 8.7 years of life. It would avoid 0.2 acres of the Spring Branch watercourse, in
addition to preserving other wetlands. A third on-site alternative was similar, adding 105
acres to the landfill footprint. This would increase capacity by 6.8 million tons (10.1
6
million cubic yards), at a cost of $11.53 per ton ($77.2 million), and extend the life of the
landfill by approximately 5.9 years. It would not impact the Spring Branch watercourse.
A fourth on-site alternative moved the expansion some 3,500 feet from the existing
landfill, resulting in two fill mounds, rather than one expanded mound. This would
increase the landfill capacity by 9.9 million tons (15 million cubic yards), at a cost of
$9.82 per ton ($97 million) and extend the life of the landfill by 8.6 years. This
alternative would not impact Spring Branch, but would impact other wetlands. The
report rejected each of these alternatives as too costly on a per unit basis, concluding any
alternative costing 50 percent more per ton than the proposed expansion was not
economically practicable.
The Commission, itself, engaged in direct dialogue, through numerous e-mail
exchanges, with real party about another alternative that would not encroach on Spring
Branch. This alternative would add 127 (rather than 167) acres to the landfill site, all
north of Spring Branch.4 It would reduce expansion capacity by about 30 percent,
shorten the lifespan of the landfill by 10 years, and reduce overall gross revenues by 45
percent. There would not, however, be a commensurate reduction in investment costs.
Because such costs are largely fixed, there would only be a 10 percent reduction in costs.
Nor was there a direct correlation between the percentage reduction in the acreage (24%)
and reduction in capacity (30%) due to “the nature of landfill engineering” and,
specifically, that the land around Spring Branch is capable of supporting a greater volume
of landfill than other areas. Real party therefore advised the Commission the economic
consequences of the 127-acre alternative will be “ ‘of such a magnitude that the business
decision to expand cannot be justified.’ ” 5
4
The Commission’s report mistakenly refers to this alternative as involving 117
acres. It is clear from the record, however, the alternative involved adding 127 acres to
the landfill footprint.
5
Given the discussion of this 127-acre alternative, petitioners are incorrect in
asserting “[t]here was no specific alternative described” by the Commission.
7
In answer to further Commission inquiries, real party explained its profit margins
were typically around 9 percent, giving it only a small margin of error for operating new
or expanded sites. Accordingly, without capacity for 54 to 59 million cubic yards of fill
in the expansion area, the project would not be “financially viable.” Real party declined
to provide further financial detail, viewing the information as confidential.
The Commission concluded the 127-acre alternative was not economically
realistic. Its rejection of this reduced-sized alternative, however, was not based solely on
economics. The Commission also pointed out: (1) even with a smaller expansion plan,
Spring Branch would need a number of man-made modifications to protect it from
natural erosion and landfill impacts; and (2) rechanneling the watercourse would actually
improve water quality at the marsh. The Commission concluded: “Based upon the
information available to the Commission, the information and statements made by [real
party] in response to staff requests to evaluate the feasibility of a smaller landfill
expansion project, and the information provided in the [draft EIR] that with mitigation
measures, diverting Spring Branch . . . would not have a significant environmental impact
on surface water quality, the Commission finds that restricting the project to avoid Spring
Branch . . . is not a reasonable alternative . . . .”
The Commission did, however, on the basis of community input and for aesthetic
reasons, reject the increased landfill height the county had allowed. Accordingly, the
height, in both the new and old portions of the landfill, would remain capped at 220 feet
above sea level, unless real party could demonstrate the fill will not be visible from preset
vantage points. This modification reduced the capacity of the planned expansion by
approximately 10 percent.
On October 21, 2010, the Commission voted 15-4 to reject the administrative
appeals, and determined that the landfill expansion, as modified by the Commission, was
consistent with the Suisun Marsh Preservation Act and the Solano County Local
Protection Plan. Pertinent here, the modified marsh development permit allowed for
8
replacement of portions of the Spring Branch watercourse with a 6,500-foot underground
pipeline and a five-foot deep, 30-foot wide surface channel.
This Writ Proceeding
Two months later, on December 17, 2010, Tam and SPRAWLDEF filed the
instant writ proceeding—separate from the, by then, already resolved Protect the Marsh
proceeding—in San Francisco Superior Court pursuant to section 29602, challenging the
Commission’s approval of the marsh development permit and, specifically, its decision to
allow alteration of the Spring Branch watercourse. Petitioners claim no substantial
evidence supports the Commission’s determination there are no reasonable alternatives
that would preserve Spring Branch and the Commission thereby violated Solano County
Ordinance section 31-300, which prohibited filling natural channels in the marsh unless
there are no reasonable alternatives. Four months later, the San Francisco Superior Court
transferred the case to Solano County.
On November 29, 2012, the same court that decided the Protect the Marsh writ
proceeding (and ultimately approved the EIR and rejected claims about the modification
of Spring Branch) issued a writ of mandate on the sole ground the Commission’s
determination that the 127-acre, reduced-size alternative was not economically
reasonable was not supported by substantial evidence. The court did not address any
other issue, including whether there was evidence in the record the alternative was
unreasonable for other reasons.
DISCUSSION
The Suisun Marsh Act and Standard of Review
The Legislature created the San Francisco Bay Conservation and Development
Commission in 1965 and gave it planning and permitting authority over projects affecting
the San Francisco Bay. (People ex rel. San Francisco Bay Conservation & Development
Commission v. Town of Emeryville (1968) 69 Cal.2d 533, 539; Mein v. San Francisco
Bay Conservation etc. Com. (1990) 218 Cal.App.3d 727, 732.) The Commission’s
9
jurisdiction over the bay includes “all sloughs; ‘marshlands’ extending from a seaward
line of ‘mean high tide’ of the bay to a landward line five feet above mean sea level;
‘tidelands’ lying between mean high tide and mean low tide; and ‘submerged lands’ lying
below mean low tide.” (Littoral Development Co. v. San Francisco Bay Conservation
etc. Com. (1994) 24 Cal.App.4th 1050, 1053; Gov. Code §§ 66604, 66610.)
The Suisun Marsh Preservation Act is intended to protect valuable natural
resources within the marsh and invests the Commission with ultimate authority over its
implementation. (See §§ 29002, 29003, 29005, 29106, 29200, 29504, subd. (a).) Under
the act, the marsh consists of “primary” water-covered areas and lowland grasslands, and
upland “secondary” areas. (§§ 29101–29103.) For developments in secondary areas—
such as the landfill expansion at issue here—a marsh development permit must be
obtained “from the local government having jurisdiction over the land in which the
proposed development is to occur.” (§ 29502, subd. (a).)
A local government may issue a marsh development permit “only if it finds that
the proposed development” is consistent with or “in conformity with” the adopted “local
protection program.” (§ 29503, subd. (a).) The local protection program is defined as
“those provisions of general or specific plans; ordinances; zoning district maps; land use
regulations, procedures, or controls; or any other programs, procedures, standards, or
controls that are adopted, undertaken, or carried out by local governments, districts, or
the Solano County Local Agency Formation Commission in and adjacent to the marsh,
are submitted by the county to the commission . . . , and meet the requirements of, and
implement, this division and the Suisun Marsh Protection Plan at the local level.”
(§ 29111.)
As we have discussed, the act permits challenges to permitting decisions to be
brought by way of a “a petition for a writ of mandate in accordance with the provisions of
Section 1094.5 of the Code of Civil Procedure.” (§ 29602.) “Under subdivision (b) of
Code of Civil Procedure section 1094.5, an abuse of discretion is established and a writ
10
of mandate should issue if an agency either failed to proceed in the manner required by
law, did not support its decision with adequate findings, or if its findings are not
supported by the record.” (Save San Francisco Bay Assn. v. San Francisco Bay
Conservation etc. Com. (1992) 10 Cal.App.4th 908, 919 (Save San Francisco Bay).) The
scope of our review of a challenged permitting decision is the same as that of the trial
court. (See Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900, 921–922
(Ross); Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th
1661, 1669.)
An “agency’s findings and actions are presumed to be supported by substantial
evidence. [Citations.] A person challenging an administrative determination bears the
burden of showing the agency’s findings are not supported by substantial evidence.
[Citations.] When reviewing the agency’s determination, the court examines the whole
record and considers all relevant evidence, including that which detracts from the
administrative decision.” (Ross, supra, 199 Cal.App.4th at p. 921.) “ ‘Although this task
involves some weighing to fairly estimate the worth of the evidence, that limited
weighing does not constitute independent review where the court substitutes its own
findings and inferences for that of the Commission. Rather, it is for the Commission to
weigh the preponderance of conflicting evidence, as [the court] may reverse its decision
only if, based on the evidence before it, a reasonable person could not have reached the
conclusion reached by it.’ ” (Id. at p. 922; see also Save San Francisco Bay, supra,
10 Cal.App.4th at p. 930, fn. 7 [substantial evidence test generally applies to
Commission’s findings on challenge under Code of Civil Procedure section 1094.5].)6
6
As a preliminary matter, the county, which filed an amicus brief in support of
the Commission, asserts SPRAWLDEF lacks standing to challenge the Commission’s
approval of the modified marsh development permit. While SPRAWLDEF did not
appeal the county’s approval of the permit to the Commission, it nevertheless participated
in the administrative proceeding by filing a letter in support of the appeals. It
subsequently joined with Tam to challenge the permit in the instant writ proceeding, and
no party has ever challenged its standing to do so. Given SPRAWLDEF’s participation
11
Substantial Evidence Supports the Commission’s Action
While petitioners have cited to a variety of provisions of the Suisun Marsh
Preservation Act and the county’s Local Protection Program, at the end of the day, their
challenge to the Commission’s approval of a marsh development permit is grounded on
one Solano County ordinance, section 31-300.7 Under section 31-300, a grading
ordinance, “every effort must be made to preserve natural channels and drainage ways”
(§ 31-300, subd. (n)) and, more concretely, that filling, grading, or excavating
watercourses “shall be allowed only where no reasonable alternative is available, and
where allowed, shall be limited to the minimum amount necessary” (id., subd. (o)).
Petitioners claim no substantial evidence supports the Commission’s finding that the 127-
acre alternative is not economically reasonable.
In arguing whether, from an economic perspective, there was “no reasonable
alternative” under section 31-300, petitioners and respondents alike invoke CEQA and its
concept of whether an alternative is or is not feasible. 8 “Feasible” is defined in CEQA
as “capable of being accomplished in a successful manner within a reasonable period of
time, taking into account economic, environmental, social, and technological factors.”
(See § 21061.1.) Under CEQA, governments are to choose “feasible” alternatives and
“feasible” mitigation measures to lessen the significant environmental impacts of
in the administrative proceeding and the language and context of section 29602, we
conclude it has standing. No question has been raised as to Tam’s standing.
7
At oral argument, the Commission suggested petitioners did not invoke this
ordinance in the trial court. That is incorrect. Petitioners expressly cited the ordinance in
their trial court memorandum of points and authorities, and the Commission, in turn,
addressed the ordinance in its opposition memorandum. The Commission had cited and
applied the ordinance during the administrative proceedings and referenced it in the
marsh development permit.
8
Before the Commission, as well, real party cited to CEQA’s feasibility language
in discussing the proposed expansion and the 127-acre alternative. No party offered an
alternative method of analysis in either the administrative proceedings or the trial court.
Nor have they done so on appeal.
12
projects. (§§ 21002, 21081.) While the Marsh Preservation Act defines “feasible”
identically to CEQA (§ 29115), it does not, itself, appear to employ the term in any
substantive way.
We conclude employing CEQA’s definition of “feasible,” and the CEQA case law
concerning economic infeasibility, is an appropriate approach since the term embraces
the concept of reasonableness. (See Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Cal.3d 553, 565, 574 [under CEQA, “ ‘[t]he statutory requirements for
consideration of alternatives must be judged against a rule of reason’ ”]; California
Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 1001
[“feasibility” under CEQA encompasses “ ‘ “desirability” to the extent that desirability is
based on a reasonable balancing of the relevant economic, environmental, social, and
technological factors’ ”].)
“The ‘feasibility of . . . alternatives must be evaluated within the context of the
proposed project. “The fact that an alternative may be more expensive or less profitable
is not sufficient to show that the alternative is financially infeasible. What is required is
evidence that the additional costs or lost profitability are sufficiently severe as to render it
impractical to proceed with the project.” ’ [Citations.] Thus, when the cost of an
alternative exceeds the cost of the proposed project, ‘it is the magnitude of the difference
that will determine the feasibility of this alternative.’ ” (Center for Biological Diversity
v. County of San Bernardino (2010) 185 Cal.App.4th 866, 883.) Ultimately, “the
question is . . . whether the marginal costs of the alternative as compared to the cost of
the proposed project are so great that a reasonably prudent [person] would not proceed
with the [altered project].” (Uphold Our Heritage v. Town of Woodside (2007)
147 Cal.App.4th 587, 600 (Woodside).)
For example, in Woodside the proposed project was replacing an old, historic
residence with a new one. (Woodside, supra, 147 Cal.App.4th at pp. 591, 598.) The
town rejected two rehabilitation alternatives as infeasible based on their cost—between
13
$4.9 million and $10 million—without obtaining any evidence about the cost of
constructing the proposed new home. Without any comparative numbers, it was not
possible to determine the feasibility of the rehabilitation alternatives. (Id. at p. 599.)
However, the conclusion was different for two other alternatives calling for relocation
and renovation of the old residence in addition to building a new home. The appellate
court held a $5 million price tag for relocation and renovation, apart from the cost of the
new home, “supports a reasonable inference that these alternatives are not economically
feasible.” (Id. at p. 599, fn. 6.)
Woodside does not require any particular economic analysis or any particular kind
of economic data, but requires generally “some context” that allows for economic
comparison. (Woodside, supra, 147 Cal.App.4th at pp. 600–601.) The appellate court
suggested that to reject the rehabilitation-only alternative, for example, it might have
been “sufficient to show that the cost of rehabilitating the existing house would be
significantly more than the cost of building a new home of a quality appropriate to the
area, or that the cost of the proposed alternative is so great that the property owner could
never expect to recover the investment on resale.” (Id. at pp. 600–601.) The court
declined to limit the ways in which economic infeasibility could be shown, noting they
could be numerous and vary depending on the circumstances. (Id. at p. 601 [“It is not
necessary to identify every conceivable means of establishing the lack of feasibility
. . . .”].)
In Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167,
1180 (Goleta Valley), the county agency approved a 400-room hotel over an alternative
calling for a reduced-size, 340-room hotel. Although the administrative record contained
estimates of annual revenue, infrastructure costs, and overall costs for the proposed 400-
room project, it did not contain these figures for the 340-room alternative. (Id. at
pp. 1180–1181 & fn. 3.) Thus, as in Woodside, meaningful comparison was not possible.
The appellate court held the approving authority could not simply surmise that project
14
costs per room would increase to the point that proceeding with the alternative would be
economically impractical. (Goleta Valley, at p. 1181.)
In contrast, Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490 (Sierra
Club), concluded the approving authority had substantial evidence to reject alternatives as
economically infeasible. In Sierra Club, a winemaker’s letter explaining the “ ‘project is
the only place on the property to construct a facility of the size and layout that we must
have to meet our fundamental business needs of operational efficiency and consolidation,
which is the justification for this large and expensive project’ ” was a “persuasive
argument” a reduced development alternative was not feasible. (Sierra Club, supra,
121 Cal.App.4th at pp. 1506, 1508.) “Although the record certainly could have included
more evidence on the point,” the court concluded there was sufficient evidence to support
rejection of smaller alternatives. (Id. at p. 1508.) “It is of no matter that the evidence of
economic infeasibility here was far less detailed than [in other cases]” as “[t]he question
is simply whether the agency’s finding was supported by substantial evidence.” (Ibid.)
The record before the Commission here is at least commensurate with that in
Sierra Club. With respect to the 127-acre alternative the Commission identified in 2010,
real party submitted a chart comparing salient data both for the landfill expansion as
proposed and the posited alternative. This showed the alternative would result in a 30
percent reduction in capacity and a 45 percent reduction in revenue. Real party also
explained why the reduction in capacity figure was not, as a matter of percentages,
commensurate with the 24 percent reduction in acreage—because, given “the nature of
landfill engineering,” the land around Spring Branch is capable of supporting a greater
volume of landfill than other areas. Real party also explained why there would not be a
correlative 45 percent reduction in costs, but only a 10 percent reduction—because many
capital costs would remain fixed or vary only slightly with the size change, and, further,
there would be a significantly reduced time period to recover costs given the reduced life
of the landfill.
15
Accordingly, real party did not simply baldly assert the 127-acre alternative was
not economically feasible. It provided comparative figures and explained why an
expansion that did not have 54 to 59 million cubic yards of capacity was not financially
viable. Thus, real party provided the Commission with “some context” to permit the
Commission to assess the economic feasibility of the 127-acre alternative. (Woodside,
supra, 147 Cal.App.4th at pp. 600–601.)
In addition, the 2009 report real party prepared for the Army Corps of Engineers
was part of the administrative record. While the Commission did not specifically refer to
the 2009 report in its decision rejecting the appeals and approving a modified marsh
development permit, there is no dispute the report was part of the record and included
within the materials referenced by staff. We must therefore assume it was within the
universe of information the Commission considered. (See Environmental Protection
Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th
459, 517.)
As we have discussed, this report examined, in considerable detail, four other on-
site alternatives involving lesser changes to the Spring Branch watercourse. The report
compared, side by side, the per unit cost, capacity, and life of the landfill, for the
proposed expansion and the alternatives. The costs per ton of the alternatives ranged
from $3.04 to $11.53, compared to $2.66 for the project as proposed. The capacities
ranged from 10.1 million cubic yards to 15 million cubic yards, compared to 61 million
cubic yards for the project as proposed. And the life of the landfill ranged from 5.9 to 8.7
years, compared to 35 years for the project as proposed. The disparity in these figures is
so great it amply supports the conclusion a reduced-size alternative of the magnitude
necessary to avoid implicating Spring Branch was not economically feasible.
Thus, the record in this case is not close to that in Woodside and Goleta Valley in
which the financial data was so lacking no economic comparison at all could be made
between the project as proposed and the alternatives. Such comparison is possible here,
16
and a reasonable person could have reached the conclusion the Commission reached.
That effectively ends our inquiry. (See Ross, supra, 199 Cal.App.4th at p. 922 [we
“ ‘may reverse [the Commission’s] decision only if, based on the evidence before it, a
reasonable person could not have reached the conclusion reached by it’ ”].) There is no
basis for the trial court’s view that real party had to produce significantly more detailed
economic data showing net profit figures. As we have discussed, the courts have
eschewed requiring any particular economic showing, and have, instead, recognized that
what is sufficient will depend on the particular context. In this case, the Commission had
an adequate record before it to fairly determine the smaller alternatives were not
economically reasonable.
There is no merit to petitioners’ assertion the economic information in the record
about the landfill expansion as proposed and the alternatives, should be discounted or
ignored because it was provided by real party. The Commission could have, of course,
rejected the evidence, had it found it not credible. It was also within the province of the
Commission, however, to accept the information as accurate and relevant. (See San
Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002)
102 Cal.App.4th 656, 684 [agency may rely on allegedly “self-serving” study]; Mahdavi
v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 340 [“self-serving
statements by University employees” were evidence].)
Furthermore, despite petitioners’ contrary assertion, the Commission did not reject
the reduced-size alternative on economic grounds alone. If an alternative is infeasible for
noneconomic reasons, such as a failure to achieve project goals, it can be rejected on that
basis without any economic feasibility analysis. (See Save Round Valley Alliance v.
County of Inyo (2007) 157 Cal.App.4th 1437, 1462, fn. 13.) All of the on-site
alternatives examined in the 2009 report prepared for the Army Corp of Engineers would
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reduce future capacity below that required by state regulations.9 The 127-acre
alternative, in turn, also involved a significant reduction in capacity, shortening the
anticipated lifespan of the landfill by a decade, and would still have required a number of
modifications to the Spring Branch watercourse. Ultimately, the Commission stated it
had reviewed all the “information available to [it], the information and statements made
by [real party] in response to staff requests to evaluate the feasibility of a smaller landfill
expansion project, and the information provided in the [draft EIR] that with mitigation
measures, diverting Spring Branch . . . would not have a significant environmental impact
on surface water quality” and concluded “restricting the project to avoid Spring Branch
. . . is not a reasonable alternative.” Substantial record evidence supports this manifestly
multi-faceted determination.
Given our conclusion that substantial evidence supports the Commission’s
decision and the trial court’s judgment invalidating it must therefore be reversed, we do
not address other arguments made by the Commission, real party, and amici, or the
responses to those arguments by petitioners. This includes the real party’s assertion
section 29409 exclusively governs the proposed expansion. This statute provides:
“Notwithstanding the policies of the protection plan, the local protection program may
not preclude the future development of a new solid waste disposal site in the Potrero Hills
if it can be demonstrated that the construction and operation of solid waste facilities at
that site would not have significant, adverse ecological or aesthetic impacts on the
marsh.” (§ 29409.) We likewise do not address petitioners’ newly fashioned response to
this argument—that “alternatives or no alternatives, the ‘substantial adverse ecological
9
Under applicable regulations, a county’s waste management plan “shall
demonstrate that there is a countywide or regionwide minimum of 15 years of combined
permitted disposal capacity through existing or planned solid waste disposal and
transformation facilities or through additional strategies.” (Cal. Code Regs. tit. 14,
§ 18755(a).) The greatest lifespan of any of the alternatives addressed in the 2009 report
was 8.7 years.
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impacts’ to Spring Branch Creek prohibit[] the current project.” Petitioners never
advanced such a claim in the trial court (their petition focused on the allegedly flawed
alternatives analysis), and to the extent they may be asserting it now as an independent
ground for invalidating the Commission’s decision they have forfeited it. (See Today’s
Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 211,
215 [such an “omission” by a petitioner attempting to support a trial court’s issuance of a
writ “would be grounds to consider the issue forfeited”]; A Local & Regional Monitor v.
City of Los Angeles (1993) 16 Cal.App.4th 630, 648.) In any event, the Commission’s
finding of no substantial adverse impacts, as mitigated and modified after input from
scientists and the community, is supported by substantial evidence. We also do not
address whether the instant writ proceeding is barred by the doctrine of res judicata based
on the trial court’s unappealed judgment in the Protect the Marsh writ proceeding. We
note, however, that while Tam was a party to that proceeding, SPRAWLDEF was not and
thus would not be subject to this preclusion doctrine. Finally, we do not address the
County of Solano’s argument, in its amicus brief, that Ordinance section 31-300 has been
misinterpreted by the parties and trial court and, as a mere grading ordinance, does not
authorize or contemplate consideration of project alternatives, but only alternative
construction methods in constructing an already-approved project.
DISPOSITION
The judgment of the trial court is reversed, and the court is directed on remand to
enter a judgment denying the petition for writ of mandate. Appellants to recover costs on
appeal.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Becton, J.

Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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