P. ex rel. Bonta v. County of Lake ( 2024 )


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  • Filed 10/23/24
    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    PEOPLE OF THE STATE OF
    CALIFORNIA EX REL. ROB
    BONTA, ATTORNEY GENERAL, et
    al.,                                         A165677
    Petitioners and Appellants,
    v.                                           (Lake County Super. Ct.
    Nos. CV421152, CV421193)
    COUNTY OF LAKE,
    Respondent;
    LOTUSLAND INVESTMENT
    HOLDINGS, INC., et al.,
    Real Parties in Interest.
    Petitioners Center for Biological Diversity and California Native Plant
    Society challenged Respondents County of Lake and the Lake County Board
    of Supervisors’ (collectively, the County) approval of the Guenoc Valley
    Mixed-Use Planned Development Project (project) proposed by Real Party in
    Interest Lotusland I6nvestment Holdings, Inc. (Lotusland) and certification
    of a final environmental impact report (FEIR) for the project adopting its
    findings. Petitioners argued the FEIR did not properly analyze and/or
    mitigate the project’s impacts on evacuation routes, wildfire risk, greenhouse
    * Pursuant to California Rules of Court, rules 8.1100 and 8.1110,
    sections IV, V, and VII of this opinion are certified for publication.
    1
    gases, and water use. They further argued that the County failed to properly
    consider project alternatives and failed to recirculate the FEIR for public
    review after adding significant new information.
    The trial court held that the County’s findings regarding the impacts
    on the existing community’s emergency evacuation routes were not supported
    by substantial evidence, and thus the FEIR did not comply with California
    Environmental Quality Act (CEQA). It otherwise rejected Petitioners’ other
    challenges, which they appealed. We too reject these other challenges to the
    FEIR, but we agree that its conclusory discussion of the project’s potential
    impact of exacerbating wildfire ignitions fails to provide meaningful
    information for the environmental assessment required by CEQA. Because
    the FEIR is invalid in part, a new environmental impact report (EIR) must be
    prepared, mooting Petitioners’ request that the FEIR be recirculated.
    BACKGROUND
    Lotusland proposed the project, a luxury resort consisting of residential
    estate villas, hotel units, and related infrastructure, on 16,000 acres in an
    unincorporated and largely undeveloped area of Lake County known as the
    Guenoc Valley Ranch.
    Having been designated the “lead agency” for purposes of approving the
    project under Public Resources Code, section 21067,1 the County first
    published a draft environmental impact report (DEIR). The DEIR offered the
    public insight into the County’s evaluation of the project’s environmental
    impacts, the County’s proffered mitigation measures, and alternatives to the
    proposed project.
    1 All further statutory references are to CEQA provisions as codified in
    Public Resources Code sections 21000–21177 unless otherwise indicated.
    Where applicable, the CEQA guidelines (Cal. Code Regs., tit. 14, §§ 15000–
    15387) are denoted as “Guidelines.”
    2
    Public comment letters alleged several deficiencies in the DEIR’s
    analysis. The County published its responses to the public comments along
    with the FEIR in June 2020.
    Petitioners and the Attorney General, on behalf of the People,
    submitted further comment letters maintaining that the FEIR fails to resolve
    many of the DEIR’s issues. Most relevant here, public comment letters
    challenged the adequacy of disclosure and mitigation regarding Impacts 3.16-
    2 (exacerbating wildfire risks), 3.7-1 (generating greenhouse gas emissions),
    3.9-2 (decreasing groundwater supplies), as well as the rejection of an
    environmentally superior alternative.
    Of note, Petitioners averred the “FEIR remains deficient because it
    fails to acknowledge or adequately analyze the increased risk of wildfire that
    results from development and increasing the intensity of use in undeveloped
    areas subject to wildfire.” While acknowledging the FEIR’s wildfire
    prevention plan (Wildfire Plan) may reduce Impact 3.16-2, Petitioners
    criticized the FEIR for failing to disclose “the Project’s potential to increase
    wildfire ignitions as compared to existing conditions on the Project site,”
    particularly “ ‘how adding new residents will affect the potential for wildfires
    to start.’ ”
    Petitioners also argued the FEIR’s analysis of the project’s greenhouse
    gas (GHG) emissions failed to correct deficiencies identified in comments to
    the DEIR. They applauded the inclusion “for the first time in the FEIR an
    administrative draft Transportation Demand Management plan” but
    nonetheless argued it fell short of CEQA’s standards for mitigation measures
    and was improperly deferred. Petitioners also urged the County to “consider
    the use of legally adequate carbon offset program to offset the Project’s
    unmitigated GHG emissions.”
    3
    Beyond addressing their complaints in a revised FEIR, Petitioners
    requested that the County recirculate it.
    At Lotusland’s request, the Board continued its hearing. The County
    then published an errata to the FEIR and a supplemental report addressing
    the latest public comments. The errata acknowledges that “[d]evelopment of
    the Guenoc Valley Site would introduce additional wildfire risk factors as
    compared to existing conditions,” including by an “increase in vehicular
    traffic” and an “increase [in] the number of inhabitants . . . thereby
    increasing the risk of wildfire due to human-caused ignitions.” It also
    explains that the Wildfire Plan is a project commitment and “would ensure
    that features are incorporated into the [project] such that wildfire risks are
    not exacerbated.” But the errata does not purport to amend the Wildfire
    Plan, which was last edited on June 1, 2020. However, certain fire
    prevention design features are included in the FEIR’s Mitigation Monitoring
    and Reporting Plan, and the errata states the Wildfire Plan is “a component
    of the Proposed Project.”2
    This did not, however, assuage Petitioners’ or the Attorney General’s
    concerns. Regarding the increased wildfire risk, for example, the Attorney
    General noted the errata “fails to provide the required Project-specific
    2 On July 17, 2020, Lotusland’s attorney sent the County a letter
    (Philippakis Letter) addressing several of the comment letters’ concerns. The
    Philippakis Letter explained that, because Lotusland “voluntarily offered at
    the outset to mitigate any risks of wildfire it had identified,” the FEIR’s
    “analysis largely analyzed the voluntary design features” instead of
    “identifying risks that need to be mitigated.” Although it conceded that
    “humans are the main cause of fire ignitions,” the letter claimed the “[p]roject
    design features make the risks . . . inapplicable.” But due to concerns raised
    by the Attorney General that the Wildfire Plan’s “measures were
    discretionary,” the letter assured the County that it could enforce the
    commitments incorporated into the Mitigation Monitoring and Reporting
    Plan.
    4
    analysis of increased wildfire risk” as opposed to a “general summary of
    wildfire research on the effects of new development on wildfires.”
    Accordingly, the Attorney General and Petitioners sought further revisions to
    the FEIR and “sufficient time . . . to review and understand the wildfire risks
    associated with the Project.”
    The County did not further revise the FEIR or recirculate it after
    releasing the errata. Instead, on July 21, 2020 — less than a week after
    publishing the errata — the Board held its hearing as scheduled, at which it
    certified the FEIR, approved the project, and adopted the County’s Findings
    and Facts in Support of Findings and Statement of Overriding
    Considerations (Findings and Statement of Overriding Considerations).
    Petitioners filed writ petitions alleging the project’s approval violated
    CEQA.3 The petitions allege that the FEIR fails to properly disclose, analyze,
    or mitigate the project’s wildfire and community safety impacts, greenhouse
    gas emissions, offsite water use, and alternatives to the project.
    The trial court ruled that the FEIR violates CEQA by failing to
    consider the project’s impact on the community’s ability to evacuate from a
    wildfire. But it rejected Petitioners’ other contentions. The court entered
    final judgment and issued a writ directing the County to set aside the project
    approvals, vacate the associated findings, and de-certify the FEIR.
    Petitioners appealed.4
    3 The People, represented by the Attorney General’s Office, successfully
    moved to intervene in the action filed by the Center for Biological Diversity.
    The People’s petition raised substantially similar issues. Months later, the
    trial court ordered the Petitioners’ actions consolidated.
    4 The Attorney General filed a notice of appeal before reaching a
    settlement with Lotusland, and the appeal was dismissed. It is unclear from
    the briefing and the materials submitted why the AG voluntarily had its
    appeal dismissed.
    5
    DISCUSSION
    I.   CEQA
    The Legislature has declared that it is the policy of the state that the
    procedures required by CEQA “are intended to assist public agencies in
    systematically identifying both the significant effects of proposed projects and
    the feasible alternatives or feasible mitigation measures which will avoid or
    substantially lessen such significant effects.” (§ 21002.) In an effort to
    achieve these goals, CEQA requires the preparation of an Environmental
    Impact Statement (EIR), the purpose of which “is to identify the significant
    effects on the environment of a project, to identify alternatives to the project,
    and to indicate the manner in which those significant effects can be mitigated
    or avoided.” (§ 21002.1.)
    The EIR should include, among other things, a detailed statement
    setting forth “[a]ll significant effects on the environment of the proposed
    project” and “[m]itigation measures proposed to minimize significant effects
    on the environment.” (§ 21100, subd. (b)(1); see also Guidelines, § 15126
    [“Significant Environmental Effects of the Proposed Project” and “The
    Mitigation Measures Proposed to Minimize the Significant Effects” shall be
    discussed “preferably in separate sections or paragraphs of the EIR”].)
    “For each significant effect, the EIR must identify specific mitigation
    measures; where several potential mitigation measures are available, each
    should be discussed separately, and the reasons for choosing one over the
    others should be stated.” (Sacramento Old City Assn. v. City Council (1991)
    
    229 Cal.App.3d 1011
    , 1027 (Sacramento Old City Assn.).) If the EIR
    identifies significant environmental effects, the public agency may approve
    the project only if it makes one or more of the following findings:
    “(a) . . . [¶] (1) Changes or alterations have been required in, or incorporated
    6
    into, the project which mitigate or avoid the significant effects on the
    environment . . . . [¶] (3) Specific economic, legal, social, technological or
    other considerations . . . make infeasible the mitigation measures or [project]
    alternatives identified in the environmental impact report.” (§ 21081; see
    also Sacramento Old City Assn., supra, 229 Cal.App.3d at p. 1034.) These
    findings must be made for each identified significant effect “accompanied by a
    brief explanation of the rationale for each finding.” (Guidelines, § 15091.)
    However, “in the event specific economic, social, or other conditions
    make infeasible such project alternatives or such mitigation measures,
    individual projects may be approved in spite of one or more significant effects
    thereof.” (§ 21002.)
    II. Mandamus Standard of Review
    As in other mandamus cases, we review the “agency’s action, not the
    trial court’s decision; in that sense appellate judicial review under CEQA is
    de novo.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of
    Rancho Cordova (2007) 
    40 Cal.4th 412
    , 427 (Vineyard).) In reviewing an
    agency’s compliance with CEQA, we review the administrative record for
    prejudicial abuse of discretion. (§ 21168.5.) Such abuse occurs “if the agency
    has not proceeded in a manner required by law or if the determination or
    decision is not supported by substantial evidence.” (Ibid.; Vineyard, 
    supra,
    40 Cal.4th at p. 426.)
    We approach procedural and factual issues under two different
    standards of review. (Sierra Club v. County of Fresno (2018) 
    6 Cal.5th 502
    ,
    512 (Sierra Club).) “[W]e determine de novo whether the agency has
    employed the correct procedures, ‘scrupulously enforc[ing] all legislatively
    mandated CEQA requirements,’ ” but “we accord greater deference to the
    agency’s substantive factual conclusions.” (Ibid.) Mixed questions of law and
    7
    fact are “generally subject to independent review,” but a more deferential
    standard may be warranted in circumstances where factual questions
    predominate. (Id., at p. 516.)
    “Substantial evidence shall include facts, reasonable assumptions
    predicated upon facts, and expert opinion supported by facts.” (§ 21082.2,
    subd. (c); Guidelines, § 15384, subd. (a) [“substantial evidence” is “enough
    relevant information and reasonable inferences from this information that a
    fair argument can be made to support a conclusion, even though other
    conclusions might also be reached”].) “In determining whether substantial
    evidence supports a finding, the court may not reconsider or reevaluate the
    evidence presented to the administrative agency. (Pub. Resources Code,
    § 21168.) All conflicts in the evidence and any reasonable doubts must be
    resolved in favor of the agency’s findings and decision.” (Citizens of Goleta
    Valley v. Board of Supervisors (1988) 
    197 Cal.App.3d 1167
    , 1177.)
    III. Substantial Evidence Shows Wildfire Plan and Biological
    Resources Analyses Are Reconcilable
    We first address Petitioners’ contention that the FEIR fails to reconcile
    its Wildfire Plan and its protection for biological resources. We reject the
    argument.5
    The Wildfire Plan includes animal grazing and manual vegetation
    removal. It provides a map showing where “grazing and manual vegetation
    removal” will occur. Studies also located all special status plants observed
    across approximately 11,550 acres — about half of the total project
    5 We observe that Petitioners bore their burden of showing this specific
    issue was raised by the Attorney General and thus exhausted the
    administrative remedies on this issue. (§ 21177, subd. (a); Maintain Our
    Desert Environment v. Town of Apple Valley (2004) 
    124 Cal.App.4th 430
    ,
    439.)
    8
    site — and estimated the protected species’ total acreage territory and
    number of individuals.
    Based on this information, the FEIR concludes that “[g]iven the
    scattered distribution of special-status plants on the [project] Site, and the
    existing and ongoing grazing activities, inclusion of grazing activities for the
    use of vegetative fuel reduction to reduce fire hazard would not result in long-
    term adverse impacts to special-status plants. This impact is therefore
    considered less than significant.” Given the extensive studies and evidence
    supporting the County’s conclusion, we do not reconsider it. (Save North
    Petaluma River and Wetlands v. City of Petaluma (2022) 
    86 Cal.App.5th 207
    ,
    216.)
    Petitioners’ reliance on San Joaquin Raptor Rescue Center v. County of
    Merced (2007) 
    149 Cal.App.4th 645
    , 655, in which the challenged EIR
    disclosed an increase in mining production that was “entirely inconsistent
    with the assurances elsewhere that there would be no increase in production”
    is unavailing. The County’s mitigation measure to counter the impacts of
    vegetation clearing (MM 3.4-18) is not incompatible with the Wildfire Plan.
    As the FEIR explains, most sensitive habitats do not require any vegetation
    removal under the Wildfire Plan. Where that is not the case, MM 3.4-18
    manages, and in some cases bars, the use of heavier equipment and grazing
    to clear vegetation. There is no irreconcilable inconsistency undermining the
    FEIR as an information document. (Cf. San Joaquin Raptor Rescue Center,
    at pp. 654–657.)
    IV. FEIR Did Not Adequately Analyze Wildfire Risk
    While we do not pass upon the correctness of the FEIR’s determination
    that the project’s purported design features sufficiently alleviate the potential
    impact of human-caused wildfires, the FEIR fails to sufficiently inform the
    9
    public of this risk. (See Laurel Heights Improvement Assn. v. Regents of
    University of California (1988) 
    47 Cal.3d 376
    , 392 (Laurel Heights).)
    Specifically, the errata’s belated mention of the project’s potential to increase
    wildfire risks does not adequately disclose the increased risks relative to the
    baseline existing conditions.
    A. Governing Standards
    An EIR is “ ‘an informational document’ ” central to “CEQA’s
    fundamental goal that the public be fully informed as to the environmental
    consequences of action by their public officials.” (Laurel Heights, supra,
    47 Cal.3d at pp. 391, 404.) Consequently, an EIR “shall” set forth “[a]ll
    significant effects on the environment of the proposed project” and
    “[m]itigation measures proposed to minimize significant effects on the
    environment.” (§ 21100, subd. (b).)6 “[S]ignificant effect” is defined as “a
    substantial, or potentially substantial, adverse change in the environment.”
    (§§ 21100, subd. (d), 21068.) CEQA requires these analyses to be distinct.
    (§ 21100, subd. (b); see also Sacramento Old City Assn., supra,
    229 Cal.App.3d at p. 1027.) “ ‘To facilitate CEQA’s informational role, the
    EIR must contain facts and analysis, not just the agency’s bare conclusions or
    opinions.’ ” (Laurel Heights, at p. 404.) In short, “there must be a disclosure
    of the ‘analytic route the . . . agency traveled from evidence to action.’ ”
    6 Mitigation measures are “feasible changes in any or all activities
    involved in the project in order to substantially lessen or avoid significant
    effects on the environment.” (Guidelines, § 15041, subd. (a).) The Guidelines
    define “mitigation” to include “avoiding the impact altogether by not taking a
    certain action,” “[m]inimizing impacts by limiting the degree or magnitude of
    the action,” “[r]ectifying the impact by repairing, rehabilitating, or restoring
    the impacted environment,” “[r]educing or eliminating the impact over time
    by preservation and maintenance operations,” and “[c]ompensating for the
    impact by replacing or providing substitute resources.” (Guidelines, § 15370,
    subds. (a)–(e).)
    10
    (Ibid.)
    An agency’s inadequate or conclusory discussion of a potentially
    substantial adverse change in the environment deprives the public of
    information necessary for informed self-government and constitutes a
    prejudicial abuse of discretion. (Sierra Club, 
    supra,
     6 Cal.5th at pp. 512–514;
    § 21168.5.) On review, we defer to the agency’s factual finding, including
    which methodologies best identify and analyze significant environmental
    impacts. (Sierra Club, at p. 516.) But we independently review “whether the
    EIR includes enough detail ‘ “ ‘to enable those who did not participate in its
    preparation to understand and to consider meaningfully the issues raised by
    the proposed project.’ ” ’ ” (Ibid.)
    B. FEIR Insufficiently Disclosed Project’s Potential Adverse
    Effects of Increased Wildfire Risks
    The errata to the FEIR discloses, under Impact 3.16-2 regarding
    exacerbating wildfire risks, that “[d]evelopment of the [project site] would
    introduce additional wildfire risk factors as compared to existing conditions.”
    Specifically, the errata outlines — in a single paragraph — that increased
    human habitation in a wildlife-urban interface increases the fire risk from
    “arson, children playing with fire, and debris-burning”; that increased
    vehicular traffic increases fire risk from “sparks, catalytic converters, and
    discarding of cigarettes”; and that “[t]he introduction of residences within the
    site would create a wildland-urban interface” that increases the general
    potential for human-ignited wildfires. These factors, it explains, “expose
    project occupants to pollutant concentrations from wildfire or the
    uncontrolled spread of wildfire.” The errata further states that “wildfires
    tend to cause more damage” to low density developments. And the County’s
    staff report, released following the errata’s publication, states “[t]he Final
    EIR acknowledges that wildfire risk from development of the Proposed
    11
    Project would be potentially significant” and “would result in impacts
    associated with increased risk of wildfire ignition.”
    The need for the FEIR’s disclosure of the potentially substantial
    adverse risk of human-caused wildfire is uncontroversial given the context.
    (See League to Save Lake Tahoe Mountain v. County of Placer (2022)
    
    75 Cal.App.5th 63
    , 136 [“Developing new homes and stores in a very high fire
    hazard area risks exacerbating the hazard . . . .”]; California Building
    Industry Assoc. v. Bay Area Air Quality Management Dist. (2015) 
    62 Cal.4th 369
    , 385 [“EIR should evaluate any potentially significant impacts of locating
    development in other areas susceptible to hazardous conditions (e.g., . . . ,
    wildfire risk areas)”]; see Guidelines, § 15126.2, subd. (a).)7
    Initially, the errata’s information came too late. (Sierra Watch v.
    County of Placer (2021) 
    69 Cal.App.5th 86
    , 103 (Sierra Watch).) “CEQA
    requires agencies to discuss a project’s potentially significant impacts in the
    draft EIR and final EIR. (CEQA Guidelines, § 15120, subd. (c); see also id.,
    §§ 15125, 15126.2.)” (Ibid.) And an agency cannot “make up for the lack of
    analysis in the EIR” through post-EIR analysis. (Save Our Peninsula
    Committee v. Monterey County Bd. of Supervisors (2001) 
    87 Cal.App.4th 99
    ,
    131 (Save Our Peninsula Committee) [errata not “subjected to the same
    ‘ “critical evaluation that occurs in the draft stage” ’ ”].) Otherwise, the public
    would be denied the “ ‘ opportunity to test, assess, and evaluate the [newly
    revealed information] and make an informed judgment as to the validity of
    7 We note that disclosures in the County’s initial study — which
    promises “[p]otential impacts related to wildfire will be addressed in the
    Wildfire section of the EIR” — does not suffice. (Sierra Club, supra, 6 Cal.5th
    at p. 520 [“The relevant informational document here is the EIR”].)
    Moreover, in tension with the errata, the revised FEIR still asserts that “the
    prospect of growth, by itself, does not create an adverse effect on the
    environment.”
    12
    the conclusions to be drawn therefrom. ’ ” (Id., at p. 131.) The same holds
    true for the letter from Lotusland’s attorney, Katherine Philippakis,
    presented to the public the day before the Board hearing to approve the
    Project, and her oral testimony at the hearing in support of the Project.
    Neither the letter nor the testimony was made part of the FEIR, and
    therefore, cannot be said to have remedied the FEIR’s insufficiencies. (See
    Communities for a Better Environment v. City of Richmond (2010)
    
    184 Cal.App.4th 70
    , 88 (Communities) ([rejecting project proponent’s post-
    EIR expert letter as “too little, and certainly too late, to satisfy CEQA’s
    requirements” because “[i]t is the adequacy of the EIR with which [courts] are
    concerned, not the propriety of the subsequent decision to approve the
    Project”].)
    It is fundamental to the purpose of CEQA that the public obtain a full
    understanding of the environmental impacts of a project from a single source
    relevant informational document — that being the EIR. (Cf. Guidelines
    § 15150, subd. (b) [“Where part of another document is incorporated by
    reference, such other document shall be made available to the public for
    inspection”]; Sierra Club, 
    supra,
     6 Cal.5th at pp. 520 [“The relevant
    informational document here is the EIR”].) This allows for easy access to the
    relevant information and direct accountability for the agency when dealing
    with large volumes of documents and material. Material not contained in the
    EIR cannot be expected to be considered; and therefore, cannot be relied upon
    to support an adequate EIR. (Laurel Heights, supra, 47 Cal.3d at p. 405
    [“ ‘ “Whatever is required to be considered in an EIR must be in that formal
    report; what any official might have known from other writings or oral
    presentations cannot supply what is lacking in the report” ’ ”].) This also
    13
    ensures the public is fully informed of the environmental risks posed by the
    proposed project.
    The FEIR in this case did not contain the information in the errata nor
    the Philippakis letter or Board presentation, as such, it came too late and
    may not be considered when evaluating the sufficiency of the FEIR.
    Moreover, even if its discussion of the project’s potentially significant
    impacts on wildfire risks did not come too late, the errata’s passing disclosure
    is insufficient to comply with CEQA. “[T]he adequacy of an EIR’s discussion
    of environmental impacts is an issue distinct from the extent to which the
    agency is correct in its determination whether the impacts are significant.”
    (Sierra Club, supra, 6 Cal.5th at p. 514; cf. Laurel Heights, supra, 47 Cal.3d
    at pp. 403–404 [“Even if the Regents are correct in their conclusion that there
    are no feasible alternatives . . . , the EIR is nonetheless defective” because the
    “treatment of alternatives was cursory at best”].) An EIR’s analysis must
    “provide decisionmakers with information which enables them to make a
    decision which intelligently takes account of environmental consequences.”
    (Guidelines, § 15151.) The instant FEIR does not perform this function.
    Specifically, the FEIR fails to reasonably describe the “additional
    wildfire risk factors as compared to existing conditions” that the project
    would “introduce” to the area. Instead, the errata points to several sources of
    “human-caused ignitions” — i.e., arson, debris-burning, vehicle sparks, and
    discarding of cigarettes — and then cites a general study finding that
    “increased fire education, a decline in smoking, and modern vehicles . . . have
    reduced the impacts of anthropogenic causes of wildfire ignitions [other than
    by powerlines] in recent times.” It concerns us that the County did not
    appear to “use its best efforts to find out and disclose all that it reasonably
    can” about the project’s impact on these risk factors. (Guidelines, § 15144.)
    14
    The errata in no way explains the extent to which bringing in over
    4,000 new residents to the largely undeveloped project site increases the risk
    of human-caused wildfire over the existing baseline risk. For example, given
    the general decline in human-caused wildfires, how many such ignitions
    occur per 1,000 people in a wildland-urban interface, and how much has that
    rate reduced as wildfire safety and education has increased? And how many
    wildfires ignite per 1,000,000 miles driven by vehicles with and by vehicles
    without catalytic converters, and how has the mix of vehicles on public roads
    affected those statistics over time?8
    The current discussion prevents decision-making and the public from
    adequately evaluating the merits of the Wildfire Plan. (Guidelines, § 15151;
    Sierra Club, 
    supra,
     6 Cal.5th at p. 514 [“adequate description of adverse
    environmental effects is necessary to inform the critical discussion of
    mitigation measures and project alternatives”].) Despite imposing no
    revisions to the Wildfire Plan, the errata affirms the FEIR’s original
    conclusion that the project “would not exacerbate the risk of wildfire from
    existing levels with implementation of the Wildfire Prevention Plan.” As the
    FEIR currently stands, there is no way to connect the dots between the
    “additional wildfire risk factors,” which the errata concedes exist, and the
    Wildfire Plan’s prevention strategies, which the errata does not update.
    8 Of course, we do not require that these specific questions be answered
    in the FEIR. (See Sierra Club, 
    supra,
     6 Cal.5th at p. 515 [“agency has
    considerable discretion to decide the manner of the discussion of potentially
    significant effects in an EIR”].) Nor must the risk be quantified if that is not
    possible. (Id., at p. 520 [“if it is not scientifically possible to do more than has
    already been done to connect air quality effects with potential human health
    impacts, the EIR itself must explain why, in a manner reasonably calculated
    to inform the public of the scope of what is and is not yet known about the
    Project’s impacts”].) But an EIR cannot give a mere cursory mention of
    potential significant impacts as the FEIR does here.
    15
    The errata contains a single sentence of such analysis, asserting that
    the Wildfire Plan’s requirement of fire breaks will “reduce the risk of wildfire
    ignition from sparks or discarded cigarettes along project roadways.” It
    vaguely points to the Wildfire Plan and a general decline in human-caused
    wildfire ignitions as support for its conclusion that the project does not
    exacerbate the risk of wildfire. While the Wildfire Plan comprehensively
    analyzes the project site’s current wildfire risk, it does not expound on the
    anthropogenic risks that the errata admits development at the project site
    will “introduce.” No component of the FEIR, therefore, discusses this aspect
    of the project in detail sufficient to enable the public to discern “the ‘analytic
    route the . . . agency traveled from evidence to action.’ ” (Laurel Heights,
    supra, 47 Cal.3d at p. 404.)
    The County counters that there is no need to separately discuss the
    project’s potential adverse effects on increased wildfire risks because the
    Wildfire Plan’s “design features” are a “central part of the [p]roject” — not
    mitigation measures — that reduce Impact 3.16-2 to “less than significant.”
    But even if the Wildfire Plan’s prevention strategies are properly
    characterized as part of the project, the FEIR still violates CEQA.9 The
    dispositive issue is whether the FEIR “obfuscates required disclosure of the
    9 Certainly, aspects of the Wildfire Plan — such as undergrounding
    power lines — reflect design choices. (E.g., Lotus v. Department of
    Transportation (2014) 
    223 Cal.App.4th 645
    , 656, fn. 8 (Lotus) [“composition of
    paving” plausibly part of design].) But we observe that other components of
    the Wildfire Plan, such as animal grazing, “[p]running tree limbs,” and
    “remov[ing] vegetation debris that accumulates on [rooves],” are more
    naturally understood as “maintenance operations” aimed at “[r]educing . . .
    impacts” of a project introducing people to undeveloped, fire-prone areas.
    (See Guidelines, § 15370, subd. (d).) We are not persuaded that making it a
    project objective to be a “ ‘ “model project” of wildfire mitigation’ ” converts
    such measures into project design features.
    16
    project’s environmental impacts and analysis of potential mitigation
    measures.” (Mission Bay Alliance v. Office of Community Investment &
    Infrastructure (2016) 
    6 Cal.App.5th 160
    , 185 (Mission Bay); cf. Save Our
    Peninsula Committee, 
    supra,
     87 Cal.App.4th at pp. 130 [finding information
    regarding mitigation measure disclosed in errata “does not make up for the
    lack of analysis in the EIR”].) It plainly does.
    Mission Bay is an instructive contrast. There, a construction project
    was defined to include a transportation management plan, which in turn
    incorporated a special event transit service plan (Muni TSP). (Mission Bay,
    supra, 6 Cal.App.5th at pp. 179–180.) The court determined the EIR was
    adequate because it analyzed the project’s environmental impacts on vehicle
    traffic and transit “both with and without implementation of the Muni TSP
    and applie[d] the same threshold standards to determine the significance of
    those impacts.” (Id., at p. 185.) Thus, “the environmental impacts of the
    project on vehicle traffic and transit [were] fully disclosed in the FSEIR.”
    (Ibid.) That is not so here, where the County admits that no similar analysis
    occurred with and without the Wildfire Plan because the project as proposed
    is “the only one that Lotusland seeks to build.”
    Again, we do not prescribe the appropriate manner of discussing the
    project’s potentially significant effects. We do not hold that the County must
    analyze the project’s environmental impacts on wildfire ignitions with and
    without the Wildfire Plan. The County retains discretion in choosing the
    methodologies employed for analyzing environmental impacts and mitigation
    measures. (Sierra Club, supra, 6 Cal.5th at pp. 516, 521.) But the FEIR
    must sufficiently discuss the project’s potential adverse effect of human-cause
    ignitions and analyze in some detail how the project’s design (or mitigation
    measures) alleviates such risks. It is not sufficient to cite a scientific study
    17
    unrelated to the project and summarily state that “increased fire education, a
    decline in smoking, and modern vehicles . . . have reduced the impacts of
    anthropogenic causes of wildfire ignitions.” That may be true, but it does not
    inform the public how this evidence led the County to conclude that the
    Wildfire Plan eliminates those otherwise reduced — but still present — risks.
    (Laurel Heights, supra, 47 Cal.3d at p. 392.) Such a discussion is critical to
    the public’s understanding of the efficaciousness of the Wildfire Plan.10 Here,
    the County presents no industry standard modeling tools, no methodology or
    analysis for its conclusory findings, nor any other discussion of how the
    Wildfire Plan proposes to address the existing baseline conditions other than
    the Project design proposal itself. This is insufficient. Failure to separately
    identify and analyze the significant impacts of the fire risk to the Project area
    and its baseline existing conditions before proposing mitigation measures
    violates CEQA. (Lotus, 
    supra,
     223 Cal.App.4th at pp. 655–658.)
    Because the FEIR must be revised to provide critical information about
    the increased risk of wildfire ignitions, Petitioners’ claim that the County
    erred by refusing to recirculate the FEIR in light of the errata’s “ ‘significant
    new information’ ” is undeniably moot. (See § 21092.1; see also Guidelines,
    § 15088.5, subd. (a)(1).)” (Communities, 
    supra,
     184 Cal.App.4th at p. 101.)
    “Because the EIR is invalid in part, a new EIR must be prepared, submitted
    for public review and comment, and certified in accord with CEQA
    procedures.” (Laurel Heights, supra, 47 Cal.3d at pp. 391, 404.)
    10 Given the FEIR’s failure to identify or describe with any particularity
    the project’s potential to increase wildfire ignitions, we do not resolve
    whether the FEIR’s mitigation of the project’s wildfire impacts is deficient.
    18
    V.   FEIR’s Inclusion of Carbon Credit Program Does Not Violate
    CEQA
    Petitioners challenge the FEIR’s inclusion of a carbon credit program to
    mitigate the project’s greenhouse gas (GHG) emissions on the grounds that it
    is ineffective, improperly deferred, and unenforceable. We find their position
    meritless.
    An EIR must discuss and adopt “feasible” mitigation measures that
    alleviate significant adverse impacts. (§ 21002; Guidelines, § 15126.4.) A
    mitigation measure is feasible if it is “capable of being accomplished in a
    successful manner within a reasonable period of time, taking into account
    economic, environmental, social, and technological factors.” (§ 21061.1.)
    Whether a measure is feasible is a factual finding reviewed for substantial
    evidence. (Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010)
    
    190 Cal.App.4th 316
    , 350). Infeasible measures need not be analyzed “in any
    detail.” (Ibid.)
    In reaction to the FEIR’s conclusion that the project’s impact due to
    greenhouse gas (GHG) emissions would be significant even after adopting
    feasible mitigation measures,11 Petitioners’ comment letter urged the County
    to “consider the use of a legally adequate carbon offset program.” But as a
    memorandum detailing the County’s responses to public comments explains,
    carbon offset credits “cannot be considered feasible” as a mitigation measure
    because “there is a limited supply of verifiable, reliable, real carbon offsets,”
    11 The FEIR evaluates and adopts several measures to mitigate the
    project’s significant impact on the direct and indirect generation of GHG
    emissions. These include using energy efficient technology, net zero energy
    buildings, and renewable energy (MM 3.7-1); implementing a transportation
    demand management plan (MM 3.13-4 incorporated through MM 3.7-1);
    utilizing less polluting engines during construction (MM 3.3-1 incorporated
    through MM 3.7-2); and conserving oak woodland habitat and replanting oak
    trees (MM 3.4-16).
    19
    and “no way to sure that adequate offset credits will be available” at the time
    that Lotusland would need to purchase them.
    Nonetheless, the errata adds a condition to the FEIR’s Mitigation
    Monitoring and Reporting Plan requiring Lotusland to “purchase [14,865]
    GHG emissions credits from a [California Air Resources Board] approved
    registry source or project to offset the difference between the mitigated
    project emissions and the [relevant significance] thresholds.” Meanwhile, the
    County’s Findings and Statement of Overriding Considerations restates that
    “[s]pecific economic, legal, social, technological, or other considerations make
    infeasible additional mitigation measures or project alternatives identified in
    the Final EIR [regarding GHG emissions].”
    Petitioners do not challenge the County’s infeasibility finding. Rather,
    they argue that, by virtue of being in the FEIR, the carbon credit program
    must meet CEQA’s standards for feasible mitigation measures. Indeed,
    Petitioners suggest that the County would have avoided any alleged defect by
    simply rejecting the program from the FEIR altogether.
    But Petitioners cite no authority for the contention that CEQA bars
    considering potentially beneficial measures that agencies deem too uncertain
    to be feasible. (Temple of 1001 Buddhas v. City of Fremont (2024)
    
    100 Cal.App.5th 456
    , 204 [arguments unsupported by legal authority or
    cogent analysis are forfeited].) And, contrary to Petitioners’ contention, the
    program was not relied upon to eliminate the project’s impacts. At the July
    21, 2020 Board hearing, it was explained that the carbon credit program’s
    addition would not avert the project’s significant and unavoidable impact
    from GHG emissions “given the limited supply of carbon offsets and the
    uncertainty regarding the availability of offset credits throughout the life of
    the project.” The errata does not state otherwise; it merely explains the
    20
    amount of carbon credits Lotusland would seek to purchase is the “difference
    between the total project emissions and the [state recognized 2030 service
    population] thresholds.” Petitioners’ reliance on Golden Door Properties, LLC
    v. County of San Diego (2020) 
    50 Cal.App.5th 467
    , 485 for the proposition
    that mitigation measures for GHG emissions must ensure that carbon credits
    are “ ‘real, additional, quantifiable, permanent, verifiable, and enforceable’ ”
    is therefore inapposite.
    Moreover, Petitioners do not contend the carbon credit program will
    impose any adverse impacts. Thus, to the extent the addition of this program
    to the FEIR did not comply with CEQA, we find it does not constitute
    prejudicial error because its inclusion did not “deprive[] the public and
    decision makers of substantial relevant information about the Project’s likely
    adverse impacts.” (Neighbors for Smart Rail v. Exposition Metro Line
    Construction Authority (2013) 
    57 Cal.4th 439
    , 463.)
    VI. Transportation Demand Management Plan Not Improperly
    Deferred
    We reject Petitioners’ arguments that proposed mitigation measure
    3.13-4 — implementing a Transportation Demand Management (TDM) — is
    improperly deferred and inadequate.
    An EIR cannot put off formulating mitigation measures (Guidelines,
    § 15126.4, subd. (a)(1)(B)), but it need not be exhaustive. (San Franciscans
    Upholding the Downtown Plan v. City and County of San Francisco (2002)
    
    102 Cal.App.4th 656
    , 696.) A measure’s specific details “ ‘may be developed
    after project approval when it is impractical or infeasible to include those
    details during the project’s environmental review’ provided that the agency”
    “ ‘(1) commits itself to the mitigation, (2) adopts specific performance
    standards the mitigation will achieve, and (3) identifies the type(s) of
    potential action(s) that can feasibly achieve that performance standard and
    21
    that will [be] considered, analyzed, and potentially incorporated in the
    mitigation measure.’ ” (East Oakland Stadium Alliance v. City of Oakland
    (2023) 
    89 Cal.App.5th 1226
    , 1254–1255; Guidelines, § 15126.4,
    subd. (a)(1)(B).) We “ ‘scrupulously enforc[e]’ ” these legislatively mandated
    CEQA requirements and determine de novo whether they have been followed.
    (Sierra Club, 
    supra,
     6 Cal.5th at p. 512.)
    There was no impermissible deferral here because the TDM satisfies all
    three requirements. We first observe the reasonable rationale for deferring
    the details for mitigating the project’s impact as measured by vehicle miles
    traveled (VMT). While the County accepted the State recommended
    significance threshold for VMT, the FEIR notes that a “limitation of VMT
    measurements is the inability to easily observe or measure them” requiring
    that they be estimated based on the number of vehicles observed multiplied
    by a probabilistic average of the distances traveled.12 VMT is not static or
    even stable over time; this inherently limits the specificity of a plan to reduce
    VMT. (Cf. Guidelines, § 15146 [“The degree of specificity required in an EIR
    will correspond to the degree of specificity involved in the underlying activity
    which is described”].) Thus, it is “readily apparent” why specifying the
    TDM’s details was “impractical or infeasible at the time the [F]EIR was
    certified.” (Preserve Wild Santee v. City of Santee (2012) 
    210 Cal.App.4th 260
    , 281.)
    The County then met the necessary conditions for deferring a
    mitigation measure’s minutiae. First, the FEIR commits the County and
    12 Nonetheless, based on such estimations, the FEIR does not mask the
    project’s significant and unavoidable impact on VMT “due to the rural nature
    of the project setting and associated longer distances required for travel.” For
    this reason, the County adopted a statement of overriding considerations
    with respect to this impact. And it devised the TDM with VMT-reducing
    strategies that may be revised or augmented based on their performance.
    22
    Lotusland to the TDM. The FEIR provides that Lotusland “shall develop and
    submit to the County a final Transportation Demand Management Program”
    for the project “[p]rior to issuance of occupancy permits for Phase 1 . . . .”
    Second, the FEIR adopts a specific performance standard that the TDM
    must achieve. It specifies the TDM’s goal “shall be” reducing the project’s
    expected VMT by 15 percent, which the TDM restates as its “minimum
    reduction goal.” This is sufficiently concrete. (City of Hayward v. Trustees of
    California State University (2015) 
    242 Cal.App.4th 833
    , 855 (City of
    Hayward) [“The Master Plan goal to reduce drive alone vehicle trips is the
    performance standard that the TDM plan will strive to meet”].)
    Third, the TDM identifies nearly a dozen strategies that can feasibly
    achieve that goal because they are “expected to collectively reduce vehicle
    trips by 3 to 20 percent.” One, for example, includes public and private
    shuttle services, the latter of which is “expected to accommodate
    approximately 40 [percent] of resort patrons,” and which together, along with
    a “dial-a-ride” service, are expected to reduce the project’s VMT by 2–10
    percent.
    The TDM further requires the post-implementation efficaciousness of
    the strategies to be analyzed. Specifically, it requires a coordinator to
    “monitor daily one-way vehicle trips” and “compare these vehicle trips to the
    aggregate daily one-way vehicle trips anticipated based on the trip
    generation rates contained within the Project’s DEIR.” If the results reveal
    the TDM’s measures “are not achieving the reduction goal” then Lotusland
    “shall adjust the TDM plan . . . in consultation with County staff.” This
    requirement is also enshrined in the FEIR’s Mitigation Monitoring and
    Reporting Plan. This satisfies CEQA. (See City of Hayward, 
    supra,
    242 Cal.App.4th at p. 855 [“The monitoring program which is an integral part
    23
    of the plan ensures that the public will have access to the information
    necessary to evaluate compliance . . . .”].)
    Petitioners’ related charge that there is no evidence of the enumerated
    strategies’ effectiveness is a factual inquiry we review for substantial
    evidence. (Save the Hill Group v. City of Livermore (2022) 
    76 Cal.App.5th 1092
    , 1114.) Here, “[t]he estimated trip reductions associated with the TDM
    strategies are based on research compiled” by the California Air Pollution
    Control Officers Association and reflect the County’s expert’s conclusions
    based on that report’s trip reduction methodology. This is enough, “even
    though other conclusions might also be reached.” (Guidelines, § 15384,
    subd. (a); see also South of Market Community Action Network v. City and
    County of San Francisco (2019) 
    33 Cal.App.5th 321
    , 339.)
    Accordingly, we conclude that the FEIR does not improperly defer or
    inadequately analyze mitigation of VMT impacts.
    VII. FEIR Adequately Discloses Potential Impact of Off-Site Well
    The project devises two separate water systems. Potable water would
    be supplied through on-site groundwater supply wells, and non-potable water
    “would be supplied by a combination of surface water from the on-site
    reservoirs, recycled from the on-site water recycling plants, and groundwater
    supply wells.” While the FEIR anticipates on-site water supplies would
    adequately supply the project’s non-potable water demands, it also identifies
    an off-site well that “may be developed” to provide a supplemental non-
    potable water supply “if required.” Because the well’s potential use is
    contingent on an unanticipated shortfall and because the aquifer it draws
    from is ill-defined, the County concluded the well would have a “potentially
    significant impact.” Petitioners argue the County erred by “omit[ting]”
    disclosure of the project’s potential use of the off-site well and for “mak[ing]
    24
    no effort to quantify the amount of groundwater the Project will draw” from
    that source. We disagree.
    While an EIR “necessarily involves some degree of forecasting” that
    requires an agency to “use its best efforts to find out and disclose all that it
    reasonably can” (Guidelines, § 15144), “the sufficiency of an EIR is to be
    reviewed in the light of what is reasonably feasible” (Guidelines, § 15151),
    and an agency may “terminate discussion of [an] impact” if its investigation
    “finds that [it] is too speculative for evaluation.” (Guidelines, § 15145.) Thus,
    rather than speculate about project impacts, the agency “may discuss
    potential project impacts at a ‘level of specificity . . . determined by the nature
    of the project and the rule of reason.’ ” (Sierra Watch, supra, 69 Cal.App.5th
    at p. 105; see Guidelines, § 15146.) Whether further disclosure and analysis
    by an EIR is reasonably feasible “presents a mixed question of law and fact,
    which usually is subject to independent review and is subject to substantial
    evidence review only when questions of fact predominate.” (King & Gardiner
    Farms, LLC v. County of Kern (2020) 
    45 Cal.App.5th 814
    , 843 (King &
    Gardiner Farms, LLC).)
    As discussed below, disclosure and analysis of the well’s potential
    environmental impacts turn on the foreseeability of the well’s actual use and
    the water source from which it draws. We find these factual questions
    predominate the inquiries, and therefore review for substantial evidence.
    (King & Gardiner Farms, LLC, supra, 45 Cal.App.5th at pp. 843–844.)
    Here, the FEIR discloses that non-potable water would be supplied by
    onsite reservoirs, onsite recycled wastewater, and groundwater wells. Those
    groundwater wells would consist of existing onsite irrigation wells and “[i]f
    necessary, an off-site high production well . . . .” Based on these supplies, the
    FEIR determines “availability of water supplies [even] during dry water
    25
    years is projected to exceed projected water demands.” Moreover, given
    “current groundwater and surface water supplies” — which does not include
    the undeveloped offsite well — the non-potable water supply would exceed
    demand during a “critical dry year” by thousands of acre feet. And during
    normal water years, the water supply from surface water entitlements (e.g.,
    onsite reservoirs) and recycled water exceed projected water demands
    without any groundwater from any source.
    Nonetheless, the County evaluated the potential offsite well’s
    production capacity and the underlying groundwater basin. The FEIR
    explains that “[p]ump test results indicate that the existing well has a high
    production capacity measured at 1,100” gallons per minute. Because of the
    existing well’s “marginal” condition, a new well would need to be constructed
    that would “yield high flows over 1,000” gallons per minute. Use of the offsite
    “well has the potential to draw down the Collayomi Valley Groundwater
    Basin,” but the County’s investigation into “regional studies and local well
    data” reveals that “the nature and extent of the aquifer that would be utilized
    is not well defined.” This is because it is not “a uniform alluvium aquifer” but
    “a series of layers and lenses of permeable or semi-permeable materials that
    are partially interconnected (Wagner and Bonsignore, 2019).” Accordingly,
    “the amount of water that could be withdrawn without substantially
    decreasing groundwater supplies has not been determined.”
    Petitioners do not challenge these findings, nor can they given the
    substantial evidence supporting them. Rather, they fault the County for
    “mak[ing] no effort to quantify the amount of groundwater the Project will
    draw from offsite.”
    Petitioners’ argument is misplaced. The County unambiguously
    explains that the well would only be used “[i]f necessary,” which it cannot
    26
    reasonably forecast given its uncontested finding that the well’s use is
    contingent on extreme circumstances that would not arise under the County’s
    most conservative model of water supplies during “critical dry years.” (See
    Sierra Watch, supra, 69 Cal.App.5th at p. 105 [“EIR was not required to
    supply speculative estimates” of construction’s duration].) Petitioners point
    to language in the FEIR stating the offsite well would “be used as a primary
    source of non-potable water” but fail to emphasize that sentence concludes
    with the caveat “if required,” which the record reveals is exceedingly unlikely.
    For this reason, Petitioners’ reliance on Santiago County Water Dist. v.
    County of Orange (1981) 
    118 Cal.App.3d 818
    , 829–830, where the EIR failed
    to evaluate the impact of supplying 12,000 to 15,000 gallons of water per day
    that “[t]he EIR disclose[d] . . . will be consumed,” is unavailing. We therefore
    find the FEIR was “prepared with a sufficient degree of analysis” and
    specificity under the rule of reason regarding the amount of water the offsite
    well would draw. (Guidelines, §§ 15151, 15146.)
    We are also unpersuaded that the County should be reasonably
    expected to disclose more information regarding the well’s potential impact
    on the underlying aqueduct or Middletown’s water supply. The County relies
    on sufficient evidence in support of its finding that the ill-defined nature of
    the aqueduct precluded a conclusive evaluation of the well’s impacts on the
    aquifer. Coupled with the unlikely and uncertain use of the offsite well, the
    FEIR’s limited discussion of the off-site well’s potential impact is
    reasonable.13 (Guidelines, §§ 15145, 15146; see also Sierra Watch, supra,
    69 Cal.App.5th at p. 105.)
    13 These same circumstances justify the deferred nature of Mitigation
    Measure 3.9-3, which imposes “safe yield analysis and monitoring” of the
    offsite well. (See Guidelines, § 15126.4, subd. (a)(1)(B); see also Section VI,
    27
    VIII. FEIR Properly Rejected Alternative C
    Petitioners contend the FEIR rejected a less environmentally impactful
    alternative — Alternative C — as infeasible without the properly supported
    findings that CEQA requires. We are unpersuaded.
    As our Supreme Court has explained, “ ‘[o]ne of [an EIR’s] major
    functions . . . is to ensure that all reasonable alternatives to proposed projects
    are thoroughly assessed.’ ” (Citizens of Goleta Valley v. Board of Supervisors
    (1990) 
    52 Cal.3d 553
    , 565, italics omitted.) This assessment is critical
    because “agencies should not approve projects as proposed if there are
    feasible alternatives . . . available which would substantially lessen the
    significant environmental effects of such projects.” (§ 21002.) Thus, an EIR
    must “describe a range of reasonable alternatives” that “would feasibly attain
    most of the basic objectives of the project but would avoid or substantially
    lessen any of the significant effects of the project.” (Guidelines, § 15126.6,
    subd. (a); Citizens of Goleta Valley, at p. 566; Laurel Heights, supra, 47 Cal.3d
    at p. 400.)
    Once such alternatives are identified, however, the agency has
    discretion to reject them if the agency “make[s] one or more of the findings
    required by section 21081.” (City of Marina v. Board of Trustees of California
    ante, p. 21.) The FEIR commits itself to the measure, adopts specific
    performance criteria for a safe yield — i.e., “avoid drawdown of groundwater
    beyond 300 feet of the well” — and identifies actions to achieve this — i.e.,
    “incorporate[ing] pump testing,” identifying monitoring wells, limiting
    pumping rates and durations based on hydraulic analysis, “submit[ting]
    annual monitoring reports” on quarterly groundwater pumping and
    groundwater level data, and requiring the analysis to be “certified by a
    Registered Professional Engineer or Registered Geologist.” This is sufficient.
    (See Guidelines, § 15126.4, subd. (a)(1)(B); see also East Oakland Stadium
    Alliance v. City of Oakland, supra, 89 Cal.App.5th at pp. 1254–1255; Section
    IV, ante, p. 9.)
    28
    State University (2006) 
    39 Cal.4th 341
    , 350; see § 21002 [“in the event specific
    economic, social, or other conditions make infeasible such project alternatives
    . . . , individual projects may be approved in spite of one or more significant
    effects thereof”]; § 21002.1, subd. (c) [similar].)
    Pursuant to paragraph (3) of that provision, an agency may reject an
    alternative after finding it is infeasible. (§ 21081, subd. (a)(3).) Specifically,
    the agency may determine that “[s]pecific economic, legal, social,
    technological, or other considerations, including considerations for the
    provision of employment opportunities for highly trained workers, make
    infeasible the mitigation measures or alternatives identified in the
    environmental impact report.” (Ibid.) And if the agency makes such an
    infeasibility finding, then it must also “find[] that specific overriding
    economic, legal, social, technological, or other benefits of the project outweigh
    the significant effects on the environment.” (§ 21081, subd. (b); Preservation
    Action Council v. City of San Jose (2006) 
    141 Cal.App.4th 1336
    , 1353
    (Preservation Action Council).)
    Notably, an agency does not abuse its discretion by rejecting
    alternatives as “infeasible” based on “policy considerations” or project
    objectives. (E.g., California Native Plant Society v. City of Santa Cruz (2009)
    
    177 Cal.App.4th 957
    , 1001 (California Native Plant) [“an alternative ‘may be
    found infeasible on the ground it is inconsistent with the project objectives as
    long as the finding is supported by substantial evidence in the record’ ”];
    Planning and Conservation League v. Department of Water Resources (2000)
    
    83 Cal.App.4th 892
    , 918 [alternatives must be evaluated “in relation to the
    objectives of the project”]; City of Del Mar v. City of San Diego (1982)
    
    133 Cal.App.3d 401
    , 417 [alternative “reasonably rejected . . . in view of the
    social and economic realities”].) Moreover, a reasonable reading of a project’s
    29
    “ ‘fundamental purpose’ ” in light of its listed objectives may defeat a
    proposed alternative’s feasibility. (Yerba Buena Neighborhood Consortium,
    LLC v. Regents of University of California (2023) 
    95 Cal.App.5th 779
    , 798
    (Yerba Buena Neighborhood Consortium, LLC); In re Bay-Delta etc. (2008)
    
    43 Cal.4th 1143
    , 1165.) An agency’s findings are presumed correct, and the
    burden is on the party seeking mandamus to prove otherwise. (California
    Native Plant, 
    supra,
     177 Cal.App.4th at p. 997.) Thus, we review the
    County’s finding that Alternative C would be infeasible for substantial
    evidence. (Ibid.)
    The instant FEIR explains the project was designed “to align with the
    objectives of the Middletown Area Plan Special Study Area, and existing
    County planning documents.” Those plans “identif[y] the need to develop
    more tourist destinations” and “encourage development of resorts with more
    commercial uses than residential.” The FEIR then sets forth the project’s
    specific development and economic objectives. Relevant here, these objectives
    include: (1) “Develop a luxury international destination resort that generates
    financial profits for the investor”; (2) “Meet Middletown Area Plan objectives
    by incorporating smart growth principles and low density development
    strategies while providing high end luxury accommodations and services”;
    (3) “Propose a mix of resort, agriculture, and residential uses consistent with
    the Lake County General Plan policies, Zoning regulations, Middletown Area
    Plan, and economic development goals and policies”; (4) “Plan for long term
    growth of the County with a significant fiscal contribution toward the
    County’s community goals of new economic, employment, and housing
    opportunities.”
    After briefly discussing alternatives eliminated from consideration, the
    FEIR evaluated three potentially feasible alternatives to the project: no
    30
    project; a reduced density, similar development footprint; and a high density,
    compact development footprint (Alternative C). Under Alternative C, all 400
    hotel units envisioned by the project would be combined into one large hotel,
    average lot size for the 1400 residential estates and 450 resort residential
    units would drop from 4.8 acres to 0.8 acres, and many of the resort
    amenities would be reduced. The FEIR concludes Alternative C would be
    environmentally superior to the project because it would result in fewer
    impacts.
    But due to the FEIR’s finding that “this alternative would not fully
    meet objectives related to the development of a luxury destination resort with
    sufficient amenities to attract a diverse range of guests and residents,” the
    County concluded in its Findings and Statement of Overriding
    Considerations that Alternative C was infeasible. This was based, in part, on
    information submitted by Lotusland “indicating that they would expect price
    reductions for residential lots of at least 35 [percent] if they are unable to
    offer larger estate lots, and resort amenities, which are in turn supported by
    the scale of homes and resort units within the community.”
    Petitioners argue that the FEIR “contained no substantial analysis as
    to Alternative C’s economic infeasibility.” Moreover, they contend the
    evidence submitted by Lotusland is too unreliable to constitute substantial
    evidence supporting the County’s conclusion that Alternative C would reduce
    the price of residential lots and threaten the “financial feasibility of this
    alternative.”14
    14 This information came in the form of two letters from the founding
    partner of luxury real estate firm IMI Worldwide Partners that attest to self-
    reinforcing market forces behind luxury development — i.e., “larger estate-
    sized homesites” with luxury amenities command “luxury prices” which in
    turn “is critical to support the luxury amenities.” One letter claims
    31
    Even if we agreed, however, this flaw is not dispositive. (See Save
    Panoche Valley v. San Benito County (2013) 
    217 Cal.App.4th 503
    , 523 [where
    an agency cites several independent reasons why an alternative is infeasible,
    the agency’s determination will be upheld if one reason is supported by
    substantial evidence].) Citing California Native Plant, 
    supra,
    177 Cal.App.4th 1336
    , the County’s Findings and Statement of Overriding
    Considerations expressly states “Alternative [C] is overall less capable of
    achieving the full scope of project objectives.” The County’s finding therefore
    goes beyond the alternative’s economic feasibility. Indeed, the foremost
    justification the County states in rejecting Alternative C is that it “is less
    capable of achieving the full array of project objectives” and “would not meet
    the objective of achieving a balance in housing densities consistent with a
    luxury resort.” We find this carries significant weight because the project’s
    objectives make plain that creating a “luxury” resort defined by low density
    residences is fundamental to the project’s purpose. (Cf. Yerba Buena
    Neighborhood Consortium, LLC, supra, 95 Cal.App.5th at p. 798.)
    The County’s conclusion reflects the FEIR’s evaluation of Alternative
    C’s inability to satisfy several of the project’s objectives. That Alternative C
    would cut the average lot sizes from 4.8 acres to 0.8 acres — an 83 percent
    reduction — and reduce the total number of luxury amenities is uncontested.
    The FEIR states the goal of “meet[ing] Middletown Area Plan objectives by
    incorporating smart growth principles and low-density development
    strategies” would not be met because the density of Alternative C “would not
    experience with “similar developments,” but the letters differ without
    explanation on Alternative C’s impact on revenues. The letters do not discuss
    costs, profits, or contain facts evaluating the project’s particular
    circumstances. (See Preservation Action Council, 
    supra,
     141 Cal.App.4th at
    p. 1352 [fact showing an alternative is merely less profitable is insufficient to
    demonstrate it is financially infeasible].)
    32
    provide as many luxury accommodations.” The FEIR also determines
    Alternative C would only partially meet the project objective regarding “the
    County’s community goals of new economic, employment, and housing
    opportunities” due to Alternative C’s “reduced resort amenities.” And it
    would only partially meet the objective for “[p]ropos[ing] a mix of resort,
    agriculture, and residential uses consistent with the Lake County General
    Plan policies, Zoning regulations, Middletown Area Plan, and economic
    development goals and policies” because “density would be higher than
    encouraged under current policies.”15
    The FEIR’s analysis that smaller and denser accommodations and
    reduced amenities would not meet these objectives is reasonable. (Citizens of
    Goleta Valley v. Board of Supervisors, 
    supra,
     52 Cal.3d at p. 569; see also
    § 21082.2, subd. (c) [“reasonable assumptions predicated upon facts”
    constitutes substantial evidence].) Accordingly, substantial evidence
    supports the County’s discretionary judgment that the alternative would not
    meet key project objectives.
    Petitioners’ other allegation that the FEIR and the County’s findings
    are contradictory is meritless. It is true that the County’s Findings and
    Statement of Overriding Considerations states Alternative C “only
    marginally lessens the Proposed Project’s potentially significant and
    unavoidable impacts,” while the FEIR states that “future phases under
    Alternative C” would eliminate the potential for significant and unavoidable
    15 Another objective that the FEIR claims Alternative C will not meet is
    “develop[ing] a luxury international destination resort that generates
    financial profit” because “Alternative C would not provide enough resort
    amenities or large enough lots . . . .” This argument relies, at least in part, on
    an argument about financial feasibility, which we do not address. But it also
    reinforces our view that the fundamental purpose of the project is to build a
    luxury resort.
    33
    impacts to scenic vistas.” Petitioners ignore, however, that the FEIR also
    concludes that Alternative C would still result in “significant and
    unavoidable aesthetic impacts in Phase 1 due to construction,” and “[a]ll
    significant and unavoidable impacts related to Important Farmlands,
    greenhouse gas emissions, noise, and traffic and transportation would still
    occur.” This is consistent with the County’s finding that Alternative C would
    only “marginally” reduce impacts compared to the project. Petitioners’
    authority, California Clean Energy Committee v. City of Woodland (2014) 
    225 Cal.App.4th 173
    , 205, where the lead agency made an “unexplained switch
    from a rationale of economic infeasibility to environmental inferiority as the
    basis for rejecting” an alternative, is therefore inapposite. There is
    substantial evidence in the record to support the FEIR’s conclusion to reject
    Alternative C.
    DISPOSITION
    For the reasons discussed above, we reverse the trial court’s decision
    that the FEIR adequately disclosed the project’s impact on increasing the
    area’s existing wildfire risks. Because the FEIR must be revised, Petitioners
    request that the FEIR be recirculated is moot. In all other respects, the
    judgment is affirmed.
    The cause is remanded to the trial court, which shall issue an order
    granting the Petitioners’ petition for a writ of mandate vacating the County’s
    certification of the EIR and approval of the project. (§ 21168.9, subd. (a).)
    Pursuant to section 21168.9, subdivision (b), the trial court shall retain
    jurisdiction over this action to ensure compliance with the peremptory writ
    issued. The parties shall bear their own costs on appeal. (Cal. Rules of
    Court, rules 8.278(a)(3), (5).)
    34
    HITE, J.*
    We concur:
    STREETER, Acting P. J.
    GOLDMAN, J.
    People ex rel. Rob Bonta v. County of Lake (A165677)
    * Judge of the Superior Court of California, City and County of San
    Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
    the California Constitution.
    35
    Trial Judge:   Hon. J. David Markham
    Trial Court:   Lake County Superior Court
    Attorneys:     Peter J. Broderick and Aruna M. Prabhala for Center for
    Biological Diversity, for Petitioner and Appellant.
    Lozeau Drury LLP, Rebecca L. Davis and Brian B. Flynn,
    for Petitioner and Appellant.
    Rob Bonta, Attorney General, Andrew R. Contreiras, Aarti
    S. Kewalramani, and Nicole U. Rinke, Deputy Attorneys
    General, for Petitioner and Appellant.
    Anita L. Grant and Nicole Danielle Johnson, County
    Counsels, for Defendant and Respondent.
    Miller Starr Regalia, Arthur F. Coon and Matthew C.
    Henderson, for Defendant and Respondent.
    Coblentz Patch Duffy & Bass LLP, Jonathan R. Bass,
    Charmaine G. Yu, and Sarah E. Peterson, for Real Party in
    Interest.
    Farella Braun & Martel, Katherine Philippakis and Linda
    Sobczynski, for Real Party in Interest.
    36
    

Document Info

Docket Number: A165677

Filed Date: 10/23/2024

Precedential Status: Precedential

Modified Date: 10/23/2024