INDIAN WELLS (760) 568-2611 IRVINE (949) 263-2600 LOS ANGELES (213) 617-8100 ONTARIO {909) 989-8584 BEST BEST & KRIEGER ATTORNEYS AT LAW 3750 University Avenue, Suite 400 Post Office Box 1 028 Riverside, California 92502-1 028 (951) 686-1450 (951) 686-3083 Fax BBKiaw.com SACRAMENTO (916) 325-4000 SAN DIEGO (619) 525-1300 WALNUT CREEK (925) 977-3300 Michelle Ouellette (951) 826-8373 Michelle. Ouellette@bbklaw. com,-..,, IO!'"'c-Mr- cr-,1--1 -, f.. -11!.t... t. - V... :-\.., - " " "", - i u_ Chief Justice Ronald M. George and Associate Justices 350 McAllister Street San Francisco, CA 94102-7303 NOV 2 4 2009 i:""r,r:::-:::::: }(.Jhmcr1 C;erk --- -----IJ8i)C;tv ------- Re: Response Opposing the Requests for Depublication (Cal. Rules of Court, rule 8. 1125(b)); California Native Plant Society, et a!. v. City of Santa Cruz (2009) 177 Cal. App.4th 957 (Sixth District Court of Appeal Case No. H032502) Dear Honorable Justices: Through this response letter, the League of California Cities ("League") respectfully opposes the letters submitted to the Supreme Court requesting depublication of the matter of California Native Plant Society, et a!. v. City of Santa Cruz (2009) 177 Cal.App.4th 957 ("CNPS"). The proponents for depublication of the CNPS decision significantly mischaracterize the result of the case's holdings. Contrary to their assertions, this decision pursuant to the California Environmental Quality Act ("CEQA") does not deviate from or confuse case law precedent regarding either the alternatives analysis in an Environmental Impact Report ("EIR") or the bases by which agency decision-makers, in adopting findings at the time of project approval, can reject alternatives as infeasible. On the contrary, CNPS merely follows long-established statutory, regulatory, and case law authority in upholding the City of Santa Cruz's ("City") alternatives analysis pursuant to the "substantial evidence" standard, and it recognizes the legitimate legislative discretion the Santa Cruz City Council exercised in rejecting alternatives as infeasible. The opponents of publication misstate CNPS's holdings in a veiled attempt to improperly eliminate valid case law that supports local agency discretion in local land use decisions. The issues involved in the CNPS decision have particular relevance to the League and its members who are responsible for implementing CEQA at the local government level. In accordance with Rule 8.1125(b), the League urges the Court to deny the requests to depublish this case.
A'fl'ORNEYSAT law Page 2 I. Interest of the League in the CNPS Decision The League is an association of 480 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide significance. The Committee has identified CNPS as being of statewide significance. The League and its members deal with CEQA and related land use and environmental issues on a regular basis, including those addressed in the CNPS decision. They often have the responsibility of reviewing projects pursuant to the guiding precedents set by CEQA case law, and therefore, have a strong interest in the development of CEQA case law, including the results of this case. II. Local Government Discretion for Local Land Use Decisions Is Properly Protected by the CNPS Decision Local governments enjoy broad discretion under the police power and Planning and Zoning Law for making local land use decisions. (Cal. Const., art. XI, 7; Gov. Code, 65000 et seq.) Project objectives in EIRs often reflect that broad discretion because CEQA does not specifically mandate the selection of the most environmentally protective alternative. Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 4 7 Cal. 3d 376, 393.). Rather, CEQA's purpose is to guarantee that the public and governmental agencies are informed of environmental impacts of a project, consider those impacts before acting, and adopt feasible alternatives and mitigation measures to avoid or lessen adverse impacts, if feasible. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 695.) (See We strongly disagree with the arguments of the parties seeking depublication of CNPS. Their unsupported mischaracterization of the implications of CNPS's holding is, in fact, an attempt to destroy or severely limit local agency discretion in analyzing and determining the feasibility of project alternatives under CEQ A. As this court held in Citizens of Goleta Valley v. Bd. OfSupervisors (1990) 52 Cal.3d 553, 576 (Goleta II), project approval under CEQA simply requires that decisions be informed and balanced, as such actions are "necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions. " The CNPS Court appropriately recognized that removing such agency discretion would be incorrect, as the arguments advanced by those advocating depublication would, as a practical matter, have reviewing courts essentially make policy decisions that are properly within the legislative province of local government agencies. Therefore, CNPS should not be depublished because the views promulgated by those seeking depublication would lead to absurd results inconsistent with agency discretion under CEQA.
BEST BEST & RJUEGER AITORNEYS AT law Page 3 III. The Court Correctly Held That Alternatives May Be Deemed Infeasible Based on a Reasonable Balancing of Competing Policy Considerations as Supported by Substantial Evidence CNPS clarifies the statutory authorization afforded to agencies in evaluating the feasibility of project alternatives based on policy considerations. CEQA expressly indicates that feasibility analysis should include the evaluation of "social" and "other" considerations. (See Pub. Resources Code, 21061.1 [noting that feasibility "takes into account economic, environmental, social, and technological factors."]; Pub. Resources Code, 21002 ["[I]n 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."]; Pub. Resources Code, 21081, subd. ( a)(3) [noting project approval may be proper despite significant effects, provided that findings regarding infeasibility of alternatives are made regarding "economic, legal, social, technological, or other considerations"].) Under these mandates, the Court of Appeal looked to the long-established case law holding that feasibility analysis "encompasses 'desirability' to the extent that desirability is based on a reasonable balancing of the relevant economic, environmental, social, and technological factors. " (City of Del Mar v. City of San Diego (1982) 133 Cal. App.3d 401, 417 [noting alternatives "infeasible in view of the social and economic realities of the region"].) CNPS merely clarifies this doctrine by holding that agencies may deem alternatives infeasible based on "social" and "other" considerations through a reasonable balancing of competing policy considerations, provided that such analysis is supported by substantial evidence. As Goleta II indicates, the wisdom for approving any development project is "a delicate task which requires a balancing of interests," in the "discretion of the local officials and their constituents." (Goleta II, supra, 52 Cal.3d at p. 576.) Therefore, CNPS properly held that it is within the discretion of the City's politically accountable decision-making body to determine the weight given to competing policy considerations, and to reject alternatives based on those considerations, provided that the decisions are supported by substantial evidence. IV. The Opponents' Reasons for Requesting Depublication Are Not Valid in Light of Their Misstatements Regarding the Implications of the CNPS Decision Contrary to many opponents' assertions, CNPS actually clarifies, rather than confuses, the interpretation of City of Marina v. Board of Trustees of the California State University (2006) 39 Cal. 4th 341 ("City of Marina"), by untangling the two-step process identified for approving a project with unmitigated environmental impacts. (See CNPS, supra, 177 Cal. App.4th at p. 1002) As noted in CNPS, the first step of this analysis is to make findings of infeasibility. (Pub. Resources Code, 21081, subd. (a); State CEQA Guidelines, 15091, subd. (a)(3).) The second step involves a weighing of any remaining environmental effects against project benefits to determine whether there are overriding considerations that would warrant project approval. (Pub. Resources Code, 21081, subd. (b); State CEQA Guidelines, 15093. ) Contrary to what has been said by the advocates of depublication (see, e. g., letter from California Oak Foundation), "balancing" may sometimes be perfectly appropriate in the findings addressing the feasibility of alternatives and mitigation, even though a different kind of balancing is also
ATIORNEYS AT law Page 4 appropriate with respect to the statement of overriding considerations. Balancing is not limited solely to the latter context. Significantly, CNPS clarifies the holding in City of Marina that these two steps are indeed separate, and the first step is a critical hurdle to proceeding with the second. As stated in City of Marina, "CEQA does not authorize an agency to proceed with a project that will have significant unmitigated effects on the environment, based simply on a weighing of those effects against the project's benefits, unless the measures necessary to mitigate those effects are truly infeasible." (Jd at 368-69.) In City of Marina, the respondent agency erroneously made findings that off-site transportation mitigation was legally infeasible based on an incorrect interpretation of the governing statutes. Accordingly, the Court rejected the agency's findings. Therefore, as the above-quoted language indicates, the second step of the analysis involving the weighing of environmental effects against project benefits could not support the approval of the project on its own, without first having made valid findings of infeasibility. Supporting this interpretation, the City of Marina decision also indicates that the project proponent could make revisions with proper findings of infeasibility other than those rejected by the Court. (See id at p. 369.) The City of Marina Court further indicated that great deference would have been given to the weighing of project benefits and remaining environmental effects if the Court could have agreed with the initial infeasibility findings. (See id at p. 368.) Thus, City of Marina merely addresses the applicability of overriding considerations when the infeasibility findings are held invalid. CNPS, on the other hand, deals with a completely different factual setting from that in City of Marina. In CNPS, the Court of Appeal found no indication of legal infeasibility. Rather, the Court found there was substantial evidence, based on social and other considerations, upon (CNPS, which the City properly based its findings that project alternatives were infeasible. supra, 177 Cal. App.4th at p. 1002-1003. ) Based on this first step of the analysis being met, the City was then justified in proceeding with the second step of weighing environmental effects against project benefits in its analysis. From the clear development of case law in these decisions, CNPS cannot be viewed as "sowing confusion" or creating "arguable tension" in the case law. Rather, CNPS clearly explains its proper reliance on and distinction from the prior case law. V. CNPS Does Not Condone Reliance Upon Narrow Project Objectives and a Reasonable Range of Alternatives Was In Fact Analyzed Contrary to some opponents' urgings, CNPS does not condone the selection of narrow project objectives, as described in Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336 ("Preservation Action Council") and Uphold Our Heritage v. Town of Woodside (2007) 14 7 Cal.App.4th 587 ("Uphold Our Heritage"). Although narrowly selected project objectives could arguably constrain the analysis of project alternatives, Preservation Action Council and Uphold Our Heritage clearly state the legal precedent that prevents such selection. CNPS does not conflict with or add confusion to the interpretation of these cases.
A'ITORNEYS AT law Page 5 Contrary to the suggestions from the advocates for depublication, the EIR in CNPS included ten project objectives that were stated in rather broad terms. The EIR also considered and analyzed several different project alternatives that were both potentially feasible and met most of the project objectives. Accordingly, the Court of Appeal properly concluded that the EIR provided a reasonable range of alternatives from which the City could make an informed decision. (See Goleta II, supra, 52 Ca1.3d at pp. 565-566, 576; CEQA Guidelines, 15126.6, subds. (c), (f).) VI. The Court Properly Applied The Substantial Evidence Standard Of Review Those advocating depublication of CNPS argue that the standard of review for whether an alternatives analysis is adequate and contains a reasonable range of alternatives involves a question of law. Based on this, they contend CNPS should not have been reviewed under the substantial evidence standard for factual disputes. However, these arguments significantly twist accepted legal precedent. In determining whether a lead agency has committed a prejudicial abuse of discretion, which is the test for an EIR, courts must adjust their 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 Ca1.4th 412, 435.) Such an abuse of discretion is established only if the lead agency has "failed to proceed in a manner required by law" or if its decision is not supported by "substantial evidence." (Pub. Resources Code, 21168.5 [indicating the two standards of review]; Vineyard, supra, 40 Cal.4th at p. 426.) Under the reasoning in Vineyard, a reviewing court should not find that an omission of information amounts to a "failure to proceed in a manner required by law," unless the petitioner can point to a clearly ascertainable legal duty that the respondent agency violated. The distinction between the "substantial evidence" and "failure to proceed" prongs of the relevant standard was clarified in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1193-1194, 1204, 1213 ("Bakersfield Citizens"). In that case, the EIRs for two shopping centers were invalidated under the "failure to proceed" standard because they wholly omitted any analysis of the projects' urban decay impacts. Substantial evidence is the standard applied to conclusions reached in an EIR and findings that are based on such conclusions. [Citation.] [Petitioner] is not challenging a conclusion in the EIR's that the shopping centers would not indirectly cause urban decay or a finding adopted by the City. It is not arguing that the City used the wrong methodology in assessing whether urban decay will be an indirect effect of the project or challenging the validity of an expert's opinion on this topic. Rather, [petitioner's] argument is that the EIR's failed to comply with the information disclosure provisions of CEQA because they omitted any meaningful consideration of the question whether the shopping centers could, individually or cumulatively, trigger a series of events that ultimately cause urban decay.
ATIORNEYS AT law Page 6 (!d. at 1208, emphasis added.) Rarely do challenges to an EIR's adequacy focus on alleged procedural violations or allege that any analysis is completely missing from an EIR for an impact area. Instead, CEQA challengers usually focus on the contents and conclusions in an EIR, specifically on the "proper scope of the analysis, the appropriate methodology for studying an impact, the reliability or accuracy of data, the validity of technical opinions, and the feasibility of further studies. " (Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1620, citation omitted.) However, these are ultimately factual determinations, which cannot be reviewed as a "failure to proceed in a manner required by law, " unless the petitioner also shows a failure to disclose conflicting evidence that precluded informed decision-making or informed public participation. (Ibid.) In determining the range of alternatives in an EIR, the applicable benchmark is the "'rule of reason' that requires the EIR to set forth only those alternatives necessary to permit a reasoned choice." (State CEQA Guidelines, 15126.6, subd. (f); see also In re Bay-Delta (2008) 43 Cal. 4th 1143, 1163; Goleta II, supra, 52 Cal.3d at pp. 565, 576.) CEQA allows considerable flexibility in fashioning a range of alternatives, in that "[ n]o ironclad rules can be imposed regarding the level of detail required in the consideration of alternatives."' (State CEQA Guidelines, 15126.6, subd. (a).) "CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR". (Goleta II, supra, 52 Cal.3d at p. 566. ) Therefore, the choice of the particular alternatives to be analyzed in an EIR is a factual determination, and the law gives agencies broad discretion in this context under the "substantial evidence" standard. In CNPS, the Court of Appeal properly found that there was no procedural error because the EIR contained a reasonable range of alternatives from which an informed decision could be made, with extensive analysis provided for the four alternatives. The Petitioner's arguments made no contention that the City of Santa Cruz had failed to undertake the required alternatives analysis. They were merely related to the content of the alternatives analysis. Therefore, the substantial evidence standard was properly applied to the matters involving the analysis of the alternatives. VII. The Requests For Depublication Should Be Denied Based on the foregoing, CNPS does not create conflict or ambiguity in the case law, and there are no valid reasons supporting its depublication. Rather, CNPS follows long-established statutory, regulatory, and case law authority and recognizes the legitimate legislative discretion that local governments exercise for rejecting project alternatives as infeasible. The decision clarifies the bases upon which agency decision-makers may deem project alternatives infeasible, provided that their analysis is supported by substantial evidence. Therefore, the League respectfully requests that this Court deny the requested depublication of CNPS. Thank you for your consideration.
ATIORNEYS AT law Page 7 cc: Patrick Whitnell, League General Counsel
PROOF OF SERVICE BY MAIL I certify and declare as follows: I am over the age of 18, and not a party to this action. My business address is : 3750 University Avenue, Suite 400 P.O. Box 1028 Riverside, CA 92502 which is located in Riverside County where the mailing described below took place. I am familiar with the business practice at my place of business for the collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On, I served the foregoing document(s) described as: Response Opposing the Requests for Depublication (Cal. Rules of Court, rule 8.1125(b)); California Native Plant Society, et al. v. City of Santa Cruz (2009) 177 Cai.App.4th 957 (Sixth District Court of Appeal Case No. H032502) to the interested parties in this action, listed on the following Service List by causing a true copy thereof to be placed in a sealed envelope, with postage fully paid in the area designated for outgoing mail. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Riverside, California, addressed as follows: See Service List on Next Page I declare under penalty of perjury that the foregoing is true and correct. Executed on, at Riverside, California.
SERVICE LIST John G. Barisone Atchison Barisone Condotti & Kovacevich 333 Church Street Santa Cruz, CA 95060 Attorneys for Defendants/Respondents James G. Moose Amy Higuera Remy, Thomas, Moose & Manley 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Attorneys for Defendants/Respondents Rose M. Zoia Attorney at Law 50 Old Courthouse, Ste #401 Santa Rosa, CA 95404 Attorney for San Francisco Preservation Consortium and We ARE Marina Del Ray Michael W. Stamp Attorney at Law 479 Pacific Street, Suite 1 Monterey, CA 93940 Attorney for Save Our Carmel River William P. Parkin Wittwer & Parkin 147 South River Street, Suite 221 Santa Cruz, CA 95060 Attorneys for Plaintiffs/Appellants Arthur Sidney Pugsley Chatten-Brown & Carstens 2601 Ocean Park Blvd, Ste 205 Santa Monica, CA 90405 Attorney for Chatten-Brown & Cartens Paige Janet Swartley California Preservation Foundation 5 Third Street, Suite 424 San Francisco, CA 94103-3205 Attorney for California Preservation Foundation Paige Janet Swartley Bingham McCutchen LLP 3 Embarcadero Ctr # 1800 San Francisco, CA 94111 Attorney for California Preservation Foundation Thomas N. Lippe Brian Roberts Turner Law Offices of Thomas N. Lippe National Trust for Historic Preservation 329 Bryant Street, Suite 3-D 5 Third Street, Ste 707 San Francisco, CA 94107 San Francisco, CA 94103 Attorney for California Oak Foundation, Thomas Lippe Attorney for National Trust for Historic Preservation Charity Kenyon Kenyon Yeates, LLP 2001 N Street, Suite 100 Sacramento, CA 95811 Attorney for Kenyon Yeates LLP Clerk of the Court Santa Cruz County Superior Court Civil Division 701 Ocean Street, Room 110 Santa Cruz, CA 95060 Clerk of the Court Sixth District Court of Appeal 333 W. Santa Clara Street, Suite 1060 San Jose, CA 95113 Hon. Chief Justice George & Associate Justices Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 Office of the Attorney General 1300 "I" Street P.O. Box 944255 Sacramento, CA 94244-2550 RVPUB\SMARTIN\766556.4