Environmental Council of Sacramento v. County of Sacramento ( 2020 )

Filed 1/30/20; Certified for Publication 3/2/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ENVIRONMENTAL COUNCIL OF C076888
SACRAMENTO et al.,
(Super. Ct. No.
Plaintiffs and Appellants, 34201380001424CUWMGDS)
v.
COUNTY OF SACRAMENTO et al.,
Defendants and Respondents;
CORDOVA HILLS, LLC et al.
Real Parties in Interest and Respondents.
Defendants County of Sacramento and the County Board of Supervisors (the
County) approved Cordova Hills, a large master planned community comprised of
residential and commercial uses and including a university (the Project). Plaintiffs
Environmental Council of Sacramento and the Sierra Club (Environmental Council) filed
a petition for writ of mandate challenging the Project, which the trial court denied.
1
Environmental Council appeals, contending the Environmental Impact Report (EIR)
contains a legally inadequate project description, an inadequate environmental impact
analysis, fails to analyze impacts to land use, and the County failed to adopt feasible
mitigation measures. At the heart of Environmental Council’s appeal is the contention
that the university is not likely to be built and since the EIR assumes the buildout of a
university it is deficient in failing to analyze the Project without a university. We shall
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Project
In 2007 real parties in interest Cordova Hills, LLC, Conwy, LLC, Cielo, LLC, and
Grantline, LLC, collectively Cordova Hills Ownership Group (Landowners), submitted
an application to the County to develop Cordova Hills. Cordova Hills was a proposed
master planned community. In 2011 the County adopted a new 2030 general plan. The
Project was evaluated based on the criteria in the general plan, including an emphasis on
master planning large special planning areas (SPA’s) instead of piecemeal project
evaluation in new growth areas.
In order to comply with the general plan planning principles, the Project was
required to include an affordable housing plan, an urban services plan, a fiscal impact
analysis, a public facilities financing plan, an air quality mitigation plan, a greenhouse
gas plan, and a development agreement.
The Project is located on approximately 2,669 acres in southeastern Sacramento
County. Currently the site is used for grazing cattle and is undeveloped.
The Project’s uses consist of residential, office, retail, a university campus,
schools, parks, and a network of trails. It will include high-density residential sites, low-
density residential sites, and a large commercial area. In addition, the Project provides
for the construction of 8,000 residential units for a population of approximately 21,379.
2
The proposed university includes a campus population of 4,140, bringing the total
population of the project to 25,519. The majority of the retail and office space will be
located in a commercial area and will include restaurants, movie theatres, bookstores,
home supply stores, and other retailers.
The EIR provides a description of the proposed university: “The SPA reserves
approximately 224 acres of land for a future college campus. At the time of this writing,
a specific university or other higher-education institution had not been identified for the
site. The SPA includes detailed concept plans for the future university/college campus
center. For the purposes of environmental analysis, the anticipated enrollment is 6,000
students (4,300 undergraduate and 1,700 graduate) and 2,036 total employees. A total of
65% of students were assumed to live on the campus (4,040 [sic] students). It was also
assumed that the university/college campus center will require approximately 1,870,000
square feet of facilities. Note that the phasing described below is a conceptual plan, and
that the actual buildout will progress over the long-term planning horizon in response to
demand and in response to the needs of the specific university which is ultimately located
here – it cannot be predicted with precision. The specific floor areas, buildings, and uses
identified in the following phases are conceptual and not intended as specific building
entitlements. None of the environmental analyses in the main chapters rely on any aspect
of this phasing plan to assess impacts; impacts are based on full buildout of the entire
area reserved for the university/college campus center.”
Originally, the development application identified the University of Sacramento as
the university tenant. In July 2011 the University of Sacramento withdrew from the
Project. Under the development agreement, if a university is not located at the site within
30 years, then the land will be transferred to the County. During the 30-year window, the
property owner may not seek or apply for a change in the land use designation. The
development agreement requires the property owner to provide the County with annual
updates on the status of finding a university for the site.
3
The development agreement also requires the property owner to establish a
“University Escrow Account” requiring the payment of $2 million after the issuance of
1,000 building permits, and an additional $2 million after 1,750 building permits and a
final $2 million after the issuance of 2,985 building permits. If a university is built, the
County will release the escrow money to the university for campus-related operations. If
a university does not locate on the site, the escrow funds will be released to the County
for the purpose of attracting a university to the location.
The Approval Process
Landowners, the Project proponents, filed an amended project application in
January 2010, after unsuccessfully filing an earlier application. In June 2010 the County
published a notice of preparation for a draft EIR of the Project. The following January,
the County released the draft EIR for public review and comment. After the County
planning commission held a hearing on the draft EIR, the County released the final EIR
in November 2012.
Approximately a month later, the County Board of Supervisors held a public
hearing on the final EIR. The County certified the final EIR and adopted the CEQA
(California Environmental Quality Act) findings of fact and statement of overriding
considerations in January 2013.
The County’s approvals under the final EIR included: (1) general plan
amendments to move the urban policy area to include the Project site, change the land use
diagram from general agriculture to other uses in the Project area, and amend the general
plan transportation plan and bikeway master plan; (2) zoning ordinance amendments to
adopt the Cordova Hills SPA to incorporate the Cordova Hills master plan, including
design guidelines and development standards for the Project area; (3) a tentative
subdivision map; (4) an affordable housing plan; (5) a development agreement; (6)
4
adoption of public facilities financing plan for the project; and (7) adoption of the
Cordova Hills water supply master plan amendment.
Among the findings and statement of overriding considerations approved is a
finding regarding the proposed university: “The Board finds that the Project’s 223-acre
university/college campus area provides the opportunity to attract a major employer of
highly trained and educated workers such as university professors, school administrators,
researchers and teaching assistants. The Board finds that there is demand for such an
institution in California, and in the Sacramento region. In making this finding, the Board
has determined that it is beneficial to have land already designated in a manner
compatible with the use being sought; the need to go through a lengthy entitlement and
permit process before construction can begin can be an important deterrent for major
employers of this kind. Thus, the Project will attract and incentivize a higher-learning
institution.”
The Subsequent Litigation
In March 2013 Environmental Council filed a petition for writ of mandate. The
trial court denied the petition, upholding the Board’s certification of the final EIR and
approval of the Project.
The court found the project description adequate under CEQA and that the EIR
did not have to address the possibility that the university would not be built. In addition,
the court held the EIR adequately disclosed and analyzed the Project’s environmental
impacts associated with air quality, traffic, and climate change. Nor was the County
required to phase the Project as a mitigation measure and that the record did not support
phasing the Project. Finally, the court determined Environmental Council failed to
exhaust administrative remedies as to whether the EIR defers mitigation of climate
change impacts by improperly treating the design of the Project as a mitigation measure.
This appeal followed.
5
DISCUSSION
I
Standard of Review
In enacting CEQA (Pub. Resources Code, § 21000 et seq.), the Legislature
declared its intention that public agencies responsible for regulations affecting the
environment give prime consideration to preventing environmental damage when
carrying out their duties. CEQA is to be interpreted to afford the fullest possible
protection to the environment within the reasonable scope of the statutory language.
(Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.)
The EIR is the heart of CEQA. Its purpose is to give the public and government
agencies the information about environmental consequences needed to make informed
decisions, thus protecting both the environment and informed self-government. (In re
Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162 (Bay-Delta).)
When an agency prepares an EIR, it provides public officials and the public with
details about a proposed project’s consequences. The EIR lists the ways to potentially
minimize any significant environmental effects, and presents alternatives to the project.
By making this information available at a crucial moment when the merits of a project
and its alternatives are under discussion, an EIR advances both environmental protection
and informed self-government. (California Building Industry Assn. v. Bay Area Air
Quality Management Dist. (2015) 62 Cal.4th 369, 383.) CEQA does not necessarily call
for disapproval of a project having a significant environmental impact, nor does it require
the selection of the alternative most protective of the environmental status quo. (Ibid.)
Instead, when economic, social or other conditions make alternatives and mitigation
measures infeasible, a project may be approved despite its significant environmental
effects if the lead agency adopts a statement of overriding considerations and finds the
benefits of the project outweigh the potential environmental damage. (Ibid.)
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“ ‘While foreseeing the unforeseeable is not possible, an agency must use its best
efforts to find out and disclose all that it reasonably can.’ ” (San Joaquin Raptor/Wildlife
Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 726.) The EIR’s
sufficiency is reviewed in light of what is reasonably feasible, and we do not look for
perfection but for adequacy, completeness, and a good faith effort at full disclosure.
(Bay-Delta, supra, 43 Cal.4th at p. 1175.)
On review, the court considers whether the public agency committed a prejudicial
abuse of discretion, either by failing to proceed in a manner required by law or by making
conclusions unsupported by substantial evidence. (Bay-Delta, supra, 43 Cal.4th at
p. 1161.) The court adjusts its scrutiny to the nature of the alleged defect, depending on
whether the claim is predominantly one of improper procedure or a dispute over the facts.
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 435 (Vineyard).) If the dispute involves facts or conclusion, the court
upholds the agency’s findings if supported by substantial evidence. (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393,
407 (Laurel Heights).)
We review the administrative record for legal error and substantial evidence in a
CEQA case, as in other mandamus cases, is the same as that of the trial court. We review
the agency’s action, not the trial court’s decision; in that sense our review under CEQA is
de novo. (Bay-Delta, supra, 43 Cal.4th at p. 1162.) We resolve reasonable doubts in
favor of the administrative finding and decision. (Laurel Heights, supra, 47 Cal.3d at
p. 393.)
II
Adequacy of Project Description
Environmental Council faults the EIR for failing to provide an adequate project
description “because the construction and development of a university is uncertain and
7
unlikely. Substantial evidence indicates a strong likelihood that a university will never be
built. Thus, the EIR’s environmental analysis, which relies upon a university at full
buildout, is based upon a falsehood and speculation.”
An EIR is an informational document designed to provide both public agencies
and the public at large with detailed information about the likely effects of a project on
the environment; to list the ways in which significant effects might be minimized; and to
discuss alternatives. At its essence, an adequate project description ensures CEQA’s goal
of providing information about a project’s impacts is not rendered useless. (Maintain
Our Desert Environment v. Town of Apple Valley (2004) 124 Cal.App.4th 430, 443.)
An EIR project description should include reasonably foreseeable future activities
that are the consequence of project approval. It should address environmental effects of
future action, if there is credible and substantial evidence that (1) it is a reasonably
foreseeable consequence of the project, and (2) the future action will be significant in that
it will likely change the scope and nature of the project and its environmental effects.
Absent these factors, an EIR need not consider future action. However, any future action
would have to be discussed in future CEQA review before the future action may be
approved. (Laurel Heights, supra, 47 Cal.3d at p. 396; Kings County Farm Bureau v.
City of Hanford (1990) 221 Cal.App.3d 692, 738 (Kings County).)
Environmental Council argues, as it did before the trial court, that the construction
of new universities has significantly decreased and universities face mounting financial
and other pressures, including competition from online education, which make it difficult
to construct, relocate, or expand facilities. In addition, the record indicates the extreme
unlikelihood of successfully recruiting a new or existing university. The university
intended for the project, and another university intended for a permitted Placer County
site, both withdrew from consideration in the planning processes. Environmental Council
also notes other sites in the Sacramento region are also seeking universities.
8
There is no doubt that attracting a major educational institution would be a
daunting task. These difficulties were taken into account by the EIR, which imposed
obligations on both the developer and the county designed to advance that goal. As the
court found: “However, several conditions in the Development Agreement require the
Developer to make good faith efforts to attract a university. Moreover, the County is
required to locate a university for the Project if the Developer does not. [¶] At no time
during the Development Agency’s 30-year term may the Developer seek to change the
designation of the Project property designated for university use; the Developer must
report annually to the County on its progress in locating a university; the Developer must
also deposit payments of $2 million (capped at $6 million) in an escrow account, if the
university land is not transferred to a higher education institution by the time 1000, 1750,
and/or 2985 residential building permits are issued; and the Developer must construct
certain infrastructure to serve the university. Additionally, the Developer must return the
land to the County to pursue a higher education use if it does not identify a university
within 30 years. In such an event, the County may use the funds in the escrow account
only for locating and building a university.”
We agree with the trial court’s assessment. We note that the County, in drafting
the EIR was required to assume all phases of the Project, including the university, would
be built. (Vineyard, supra, 40 Cal.4th at p. 431.)
In addition, the record contains numerous statements by educational figures and
civic leaders regarding both the need for a university and the desirability of the location
in question. The Project also sets forth numerous incentives to encourage a university
tenant, including approximately $87 million of commitments to the university. In
addition, the approved development agreement precludes the landowners from changing
the use for the site; requires active pursuit of a university user and to report annually on
these efforts; requires the landowners to make front-loaded escrow payments that would
9
be provided to the university; and require landowners to construct infrastructure to serve
the university frontage in the first stage of development.
Environmental Council fails to present credible and substantial evidence to
support its assertion that the proposed university is an illusory element of the project
based on speculation and included only to minimize environmental effects. It is possible
that the developer may fail to locate a university and will therefore return that portion of
the Project land back to the County in 30 years. At that point, the County may decide to
use the land for another purpose which would necessitate a subsequent EIR. CEQA does
not require an EIR to discuss future developments which are unspecified or uncertain.
“Such an analysis would be based on speculation about future environmental impact.”
(Kings County, supra, 221 Cal.App.3d at p. 739.)
We find the Project description legally adequate. The EIR is not required to address the
speculation that the university will not be built.
III
Adequacy of Environmental Impact Analysis
Environmental Council contends the EIR misrepresents the significance of the
Project’s environmental impacts to air quality, climate change, and traffic because it
mistakenly assumes the university will be built. In addition, Environmental Council
asserts the EIR fails to adequately describe the significance of these impacts by not
acknowledging that a university may not be constructed for some time.
CEQA requires that an EIR should be prepared with a sufficient degree of analysis
in order to provide decisionmakers with sufficient information to enable them to make
decisions which take into account environmental consequences. In assessing an EIR’s
analysis we look not for perfection, but for adequacy, completeness, and a good faith
effort at full disclosure. (Citizens to Preserve the Ojai v. County of Ventura (1985)
176 Cal.App.3d 421, 429.)
10
Under CEQA, an EIR must identify and describe a project’s significant
environmental effects: direct, indirect and long-term. (Pub. Resources Code, § 21100,
subd. (b)(1); Cal. Code of Regs., tit. 14, § 15126.2, subd. (a).) 1 Significant effects should
be discussed in proportion to their severity and probability of occurrence. (Guidelines,
§ 15143.) An EIR must identify and describe any feasible mitigation measures that can
be implemented to reduce or avoid each potentially significant environmental impact.
(Pub. Resources Code, § 21100, subd. (b)(3); Guidelines, § 15126.4, subd. (a)(1).) The
adequacy of an EIR is determined in terms of what is reasonably feasible, in light of
factors such as the magnitude of the project at issue, the severity of its likely
environmental impacts, and the geographic scope of the project. (Guidelines, § 15204,
subd. (a).)
Environmental Council renews its claim that the EIR failed to adequately disclose
the Project’s impacts without the university. However, Environmental Council concedes
that at the time the EIR was approved, the management district proposed additional
mitigation measures to reach a 35 percent reduction in emissions and the County
subsequently adopted changes to mitigation measure AQ-2 in accepting the management
district’s proposed changes.
Previously we found the EIR was not required to describe the Project in a way that
contemplated the university would not be built. Nor do we find the EIR’s analysis of air
quality, climate change, and traffic impacts is erroneous because it did not consider the
possibility the university would not be built, or might not be built for some time.
1 The regulations implementing CEQA are codified at California Code of Regulations,
title 14, section 15000 et seq., and are referred to as the State CEQA Guidelines
(hereafter, Guidelines).
11
The EIR found that the specific impacts cited by Environmental Council would be
significant and unavoidable. The County adopted findings of fact and a statement of
overriding considerations recognizing these impacts, but found the other factors
outweighed the impacts and supported the Project approval. We consider Environmental
Council’s challenges to the impacts to air quality, climate change, and traffic in turn.
Air Quality
Environmental Council argues the EIR misrepresents oxides of nitrogen (NOX)
and reactive organic gas (ROG) emissions because if the university is not built they
would only be mitigated by 20 percent rather than 35 percent. NOX and ROG are types of
ozone precursors and are identified by the Sacramento Metropolitan Air Quality
Management District (District) as “criteria pollutants.”
The EIR finds the Project will cause significant and unavoidable impacts to air
quality by increasing NOX and ROG emissions beyond District’s threshold of
significance of 65 pounds per day. The Project would increase NOX and ROG emissions
by 415.22 pounds per day and 857.40 pounds per day respectively. During the review
process, the District, County, and the landowners developed an air quality management
plan (Management Plan) to reduce these emissions by 35 percent. Even with this
reduction, the EIR concludes the increases are still significant and unavoidable.
County added mitigation measure AQ-2 to address air quality concerns. In the
final EIR, AQ-2 requires that the Project comply with the Management Plan and that any
amendments to the Cordova Hills SPA shall not increase ozone precursor emissions
beyond the 35 percent reduction unless the County approves a change to the Management
Plan.
AQ-2 states: “Comply with the provisions of the Air Quality Management Plan
dated June 1, 2011, and incorporate the requirements of this plan into the Cordova Hills
Special Planning Area conditions. Also the following text shall be added to the Cordova
Hills SPA: ‘All amendments to the Cordova Hills SPA with the potential to result in a
12
change in ozone precursor emissions shall include an analysis which quantifies, to the
extent practicable, the effect of the proposed SPA amendment on ozone precursor
emissions. The amendment shall not increase total ozone precursor emissions above
what was considered in the AQMP for the entire Cordova Hills project and shall achieve
the original 35% reduction in total overall project emissions. If the amendment would
require a change in the AQMP to meet that requirement, then the proponent of the SPA
amendment shall consult with [District] on the revised analysis and shall prepare a
revised AQMP for approval by the County, in consultation with [District].”
Therefore, if Project changes require alterations to the Cordova Hills SPA, for
example if a university is not built, the changes cannot increase NOX and ROG emissions
beyond that 35 percent reduction absent County approval. AQ-2 undercuts
Environmental Council’s contention that EIR fails to adequately address air quality.
Recirculation for Further Review
In a related claim, Environmental Council contends the County was required to
recirculate the EIR to address the revisions to mitigation measure AQ-2, based on the
District and County’s position that the AQ-2 would mitigate NOX and ROG emissions,
even if the university were not built. According to Environmental Council, the EIR fails
to address this and instead the County improperly modified the mitigation measure in
approving the final EIR.
CEQA requires a lead agency to recirculate an EIR when significant new
information is added to the EIR after the draft EIR has been released to the public for
review and prior to certification. (Pub. Resources Code, § 21092.1.) Significant
information includes a “substantial increase in the severity of an environmental impact”
that would result “unless mitigation measures are adopted that reduce the impact to a
level of insignificance.” (Guidelines, § 15088.5; Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal.4th 1112, 1130.) Recirculation is
13
intended to be the exception rather than the rule. (Laurel Heights Improvement Assn., at
p. 1132.)
Environmental Council argues the development of the Project without a university
will result in air quality impacts that will be more significant than those discussed in the
EIR and these air quality impacts are significant and unavoidable. According to
Environmental Council, the Project’s NOx and ROG emissions will be reduced by only
20 percent as opposed to 35 percent if a university is not built. Therefore, this difference
in mitigation reduction is a substantial increase in the severity of the air emissions
impacts requiring recirculation of the EIR.
The County asserts Environmental Council failed to exhaust its administrative
remedies by failing to raise the issue during the administrative process. A party cannot
maintain an action alleging that the EIR does not comply with CEQA unless the grounds
for noncompliance were presented to the public agency orally or in writing during the
public comment period or prior to the close of the public hearing on the project before the
issuance of the notice of determination. Any objection must be sufficiently specific so
that the agency has the opportunity to evaluate and respond. The party asserting the issue
bears the burden of showing the issue was first raised at the administrative level. (Tracy
First v. City of Tracy (2009) 177 Cal.App.4th 912, 926 (Tracy).)
Environmental Council asserts that a member of the public alerted the County in
October 2012 of the need for recirculation because the EIR did not provide an adequate
analysis of environmental impacts because of the uncertainty of the university being
built. We will accept the assertion for purposes of argument and consider Environmental
Council’s recirculation contention.
According to Environmental Council, the air quality impacts are significant and
unavoidable because the Project’s NOX and ROG emissions will be reduced by only 20
percent as opposed to 35 percent if a university is not constructed. This difference in
mitigation reduction is a substantial increase in air emissions requiring recirculation.
14
Environmental Council’s argument overlooks the fact that mitigation measure
AQ-2 requires a 35 percent reduction of NOX and ROG emissions if the SPA is amended,
unless the County otherwise approves. We agree with the trial court’s observation that
“the impacts to NOX and ROG emissions vastly exceed the thresholds of significance,
regardless of whether they are mitigated by 20% or 35%. Thus even accepting
Petitioners’ argument as true, it is debatable whether a 15% reduction in mitigation is a
‘substantial increase’ in the severity of these particular environmental impacts. Finally,
the revisions to mitigation measures AQ-2 and CC-1 do not increase environmental
impacts, much less substantially increase them.” The difference in reduction of
mitigation is not significant new information requiring recirculation.
Climate Change
Environmental Council contends that by assuming the university will be
constructed, the EIR fails to adequately address climate change impacts, echoing their
arguments against the EIR’s analysis of air quality. Environmental Council concedes that
mitigation measure CC-1 was revised to ensure that any future Project changes would not
increase greenhouse gas emissions.
As revised, CC-1 states: “The following text shall be added to the Cordova Hills
SPA: All amendments to the SPA with the potential to change SPA-wide GHG
emissions shall include an analysis which quantifies, to the extent practicable, the effect
of the Amendment on SPA-wide greenhouse gas emissions. The Amendment shall not
increase SPA-wide greenhouse gas emissions above an average 5.80 metric tons per
capita (including emissions from building energy usage and vehicles.) If the SPA
amendment would require a change in the approved GHG Reduction Plan in order
to meet the 5.80 MT CO2e threshold, then the proponent of the SPA amendment
shall consult with the Sacramento County Environmental Coordinator on the
revised analysis and shall prepare a revised GHG Reduction Plan for approval by
the County who will coordinate with [the district].” (Revisions in bold.)
15
Environmental Council cites table CC-15, which states that the combined land
uses in the Project will emit 5.80 metric tons of greenhouse gas per capita. They argue
that the remaining portions of the EIR’s climate change analysis indicate that if the
university is not built, the Project will increase the per capita greenhouse gas emissions.
Therefore, the EIR does not adequately inform the public or decision makers about the
environmental impact.
However, mitigation measure CC-1 prohibits amendments to the SPA from
increasing greenhouse gas emissions above the 5.80 metric ton per capita amount. If the
SPA amendment requires the greenhouse reduction plan to be changed to meet the 5.80
metric ton amount, the County must approve a revised greenhouse reduction plan.
Mitigation measure CC-1 requires that a revised use of the land satisfy the 5.80 metric
ton threshold and that the County must approve a revised greenhouse gas reduction plan
to meet this threshold. The EIR adequately discussed greenhouse gas impacts.
Traffic
Environmental Council also faults the EIR’s traffic analysis as being inadequate
because it is based on the full buildout of the proposed university. Without the university
component, Environmental Council argues, the transportation analysis misstates and
underestimates the Project’s impact because it assumes reductions based on a university
which may never occur.
According to Environmental Council, the EIR relies on unrealistically high non-
automobile mode share, because 43 percent of the total university trips within the
university area will use nonautomotive modes and only 12 percent of the trips in the
Project area will use nonautomotive modes. Environmental Council also contends the
EIR relies upon an improper trip internalization reduction based on the assumption the
university will be built.
Environmental Council raised these same arguments in their comments on the
EIR. The final EIR responded to these comments and provided evidence supporting the
16
County’s determination of the transportation impacts. The final EIR noted that “as a
proportion of overall trips, the large non-automotive share for the university has a very
small impact on overall mode-share.” In addition, the Environmental Council’s comment
assumes that a major portion of trip reductions occur because of the university, but those
reductions “were based on factors such as the proposed transit system, Neighborhood
Electric Vehicle system, pedestrian and bicycle trails, and proximity to uses.” They also
overlooked that fact that removing the university could result in the reduction of 9,000
daily trips, and therefore there was no basis for the assertion that “removal of the
university/college campus center is certain to be a ‘worst-case’ traffic scenario.” Again,
Environmental Council has not met its burden of showing the EIR underestimates traffic
impacts.
IV
Consistency with Sacramento Area Council of Government’s Metropolitan
Transportation Plans/Sustainable Communities Strategy
Environmental Council also challenges the EIR for failing to address whether it
was consistent with the Sacramento Area Council of Government’s (SACOG)
metropolitan transportation plans/sustainable communities strategy (MTP/SCS).
According to Environmental Council, inclusion of the Project in future MTP/SCS would
require changes to the land use pattern and transportation system from the current
MTP/SCS in order to reduce emissions elsewhere in the region to make up for the
Project’s higher emissions. Senate Bill No. 375 (2007-2008 Reg. Sess.) requires
metropolitan planning organizations in California to reduce per capita vehicle miles
traveled (VMT) and related greenhouse gasses through a coordinated land use and
transportation plan called the sustainable communities strategy (SCS). (Gov. Code,
§§ 65080.)
17
County objects to this contention on procedural and substantive grounds.
Environmental Council failed to exhaust their administrative remedies by not presenting
this argument to the County Board of Supervisors in the administrative process.
Moreover, County points out, nothing in Senate Bill No. 375 requires a project be
evaluated under CEQA for consistency with an SCS.
We agree. In failing to raise the issue during the administrative process,
Environmental Council has waived the issue. (Sierra Club v. California Coastal Com.
(2005) 35 Cal.4th 839, 864.) Nor does Environmental Council cite any evidence that a
project must be evaluated under CEQA for consistency with an SCS. Environmental
Council does not provide any response to these challenges in their reply brief.
V
Failure to Adopt Feasible Mitigation Measures
Finally, Environmental Council contends the record demonstrates a mitigation
measure requiring phasing of project development in conjunction with a university would
assist in reducing the Project’s environmental impacts. Therefore, the County violated
CEQA by failing to adopt feasible mitigation measures to minimize environmental
impact.
CEQA requires that an EIR propose and describe mitigation measures to minimize
significant environmental effects. (Pub. Resources Code, §§ 21002.1, subd. (a); 21100,
subd. (b)(3).) An agency must adopt feasible mitigation measures when approving a
project to reduce or avoid significant environmental effects. (Pub. Resources Code,
§§ 21002, 21081, subd. (a).)
In essence, Environmental Council argues that phasing the project would provide
assurance that a university would be constructed. The trial court interpreted phasing “to
mean not building all or part of the Project until a university has been located.”
According to Environmental Council, as a result of County’s failure to adopt phasing “the
18
entire non-university can be fully constructed and developed without any efforts to attract
or construct a university.” Environmental Council repeats its arguments that greenhouse
gas emissions, VMT, and ozone precursors are significantly less with a university and
greater if the university is not built.
County addressed mitigation measures in the findings and statement of overriding
considerations: “Any of the mitigation measures that were suggested in the [draft EIR]
and [final EIR] but not incorporated into the Project due to their infeasibility are
infeasible in part because such measures would impose limitations and restrictions on the
Project so as to prohibit the attainment of economic, social, and other benefits of the
Project which this Board finds outweigh the unmitigated impacts of the Project.”
Although Environmental Council asserts that phasing of the Project is feasible,
they fail to provide any evidence in the record to support this conclusion. It is not the
court’s duty to independently review the administrative record to find relevant facts to
support Environmental Council’s claim of feasibility. Therefore Environmental Council
forfeited the argument that phasing was a feasible mitigation measure, and that County’s
decision not to phase the Project was unsupported by substantial evidence. (Tracy, supra,
177 Cal.App.4th at pp. 934-935; Environmental Council of Sacramento v. City of
Sacramento (2006) 142 Cal.App.4th 1018, 1028-1029.)
19
DISPOSITION
The judgment is affirmed. The respondents shall recover costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
ROBIE, J.
20
Filed 3/2/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ENVIRONMENTAL COUNCIL OF C076888
SACRAMENTO et al.,
(Super. Ct. No.
Plaintiffs and Appellants, 34201380001424CUWMGDS)
v. ORDER CERTIFYING
OPINION FOR PUBLICATION
COUNTY OF SACRAMENTO et al.,
[NO CHANGE IN
Defendants and Respondents; JUDGMENT]
CORDOVA HILLS, LLC et al.
Real Parties in Interest and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County,
Shelleyanne W.L. Chang, Judge. Affirmed.
Law Offices of Donald B. Mooney and Donald B. Mooney for Plaintiffs and
Appellants.
John F. Whisenhunt, County Counsel and Krista C. Whitman, Assistant County
Counsel, for Defendants and Respondents.
Law Offices of Gregory D. Thatch, Gregory D. Thatch and Larry C. Larsen for
Real Parties in Interest and Respondents.
21
THE COURT:
The opinion in the above-entitled matter filed January 30, 2020, was not certified
for publication in the Official Reports. For good cause it appears now that the opinion
should be published in the Official Reports and it is so ordered.
BY THE COURT:
/s/
RAYE, P. J.
/s/
BLEASE, J.
/s/
ROBIE, J.
22