Citizens for Positive Growth & Preservation v. City of Sacramento

Filed 11/26/19; Certified for Publication 12/18/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

CITIZENS FOR POSITIVE GROWTH & C086345
PRESERVATION,
(Super. Ct. No.
Plaintiff and Appellant, 34201580002058CUWMGDS)

v.

CITY OF SACRAMENTO et al.,

Defendants and Respondents.

Defendant the City of Sacramento (City) approved and adopted the 2035 General
Plan in March 2015. At the same time, the City certified the environmental impact report
(EIR) for the 2035 General Plan in accordance with the California Environmental Quality
Act (CEQA; Pub. Resources Code,1 § 21000 et seq.). Plaintiff Citizens for Positive

1 All further section references are to the Public Resources Code unless otherwise
specified.

1
Growth & Preservation (Citizens) filed a petition for writ of mandate and injunctive relief
and a complaint for declaratory relief (petition) against the City and its city council
seeking to set aside both administrative actions. The trial court denied the petition,
upholding both actions; Citizens appeals.
On appeal, Citizens challenges the validity of the 2035 General Plan and the EIR.
It contends we should vacate the trial court’s ruling regarding the 2035 General Plan and
order the City to rescind its approval thereof because a sentence in the introductory
paragraph violates and conflicts with state planning laws. It argues we should do the
same as to the EIR because the City’s analyses pertaining to traffic, greenhouse gas
emissions, air quality, cyclist safety, and the “no project” alternative failed to comply
with CEQA, and the City was required to recirculate the EIR after releasing substantial
supplemental changes shortly before the city council’s public hearing.
Finding no merit in Citizens’s arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
For the reader’s ease, we provide a summary of the general factual and procedural
background here and include the pertinent facts as to each issue in the applicable portion
of the Discussion.
The City adopted its 2030 General Plan in March 2009. In October 2012, the City
initiated a five-year technical update to the 2030 General Plan, culminating in the City’s
2035 General Plan. The key changes included updating the planning forecast horizon
through 2035 and revising the traffic thresholds of significance standards used in the
2030 General Plan.
The City released its draft 2035 General Plan and draft EIR for public review in
August 2014. On January 15, 2015, the planning and design commission voted to
forward to the city council a recommendation to certify the EIR and adopt the 2035
General Plan, including five supplemental changes to the draft 2035 General Plan and
EIR considered by the commission.

2
 On February 24, 2015, the City issued a “special reminder” that the city council
would consider adopting the 2035 General Plan and certifying the EIR at a meeting on
March 3, 2015. In the reminder, the City provided a hyperlink to a document containing
a “list of supplemental changes to the Draft 2035 General Plan.” The document outlined
13 changes to the draft 2035 General Plan and EIR, including the five changes previously
considered by the planning and design commission.
The City approved the 2035 General Plan and certified the EIR with the proposed
changes on March 3, 2015. Citizens filed suit on April 1, 2015.
DISCUSSION
I
The 2035 General Plan
Citizens presents a facial challenge to the 2035 General Plan, arguing the
introductory paragraph violates Government Code section 65300.5, the Governor’s
Office of Planning and Research’s General Plan Guidelines (General Plan Guidelines), 2
and “state planning laws” because it purports to grant to the City unfettered discretion to
“create a hierarchy of General Plan elements, or to approve projects inconsistent with any
policy of the General Plan.” Citizens requests we vacate the trial court’s ruling and order
the City to rescind approval of the 2035 General Plan.
The introductory paragraph provides: “The City, in its sole discretion, shall
determine a proposed project’s consistency with the City’s General Plan. Consistency is
achieved if a project will further the overall objectives and policies of the General Plan
and not obstruct their attainment, recognizing that a proposed project may be consistent
with the overall objectives of the General Plan, but not with each and every policy

2 The pertinent General Plan Guidelines were issued in October 2003. Although the
General Plan Guidelines are advisory, they provide an aid to interpretation. (Twain Harte
Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 702.)

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thereof. In all instances, in making a determination of consistency, the City may use its
discretion to balance and harmonize policies with other complementary or countervailing
policies in a manner that best achieves the City’s overall goals.” It is the last sentence
that contains the language offensive to Citizens.
The City argues the 2035 General Plan comports with governing law because it is
internally consistent as written and the introductory paragraph “is consistent with
precedent that acknowledges the City’s discretion to weigh and balance competing
interests in establishing development policies and in applying them.” As we explain, the
introductory paragraph does not conflict with or violate governing law and does not
render the 2035 General Plan invalid on its face.
A
General Plan Consistency Requirements Generally
“A city or county must adopt a ‘comprehensive, long-term general plan’ for its
physical development. [Citation.] The general plan must include ‘a statement of
development policies and . . . objectives, principles, standards, and plan proposals’ and
elements addressing land use, circulation, housing, conservation, open space, noise, and
safety. [Citation.] The general plan serves as a ‘charter for future development’
[citation] embodying fundamental policy decisions [citation]. The policies in a general
plan typically reflect a range of competing interests.” (Federation of Hillside & Canyon
Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1194.)
The concept of consistency arises in the context of a general plan at two distinct
stages. It first arises when a city adopts a general plan. Government Code section
65300.5 provides a general plan and each of its elements must “comprise an integrated,
internally consistent and compatible statement of policies.” “A general plan is internally
inconsistent when one required element impedes or frustrates another element or when
one part of an element contradicts another part of the same element. For example, a land
use element calling for substantial increases in population is inconsistent with a

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circulation element acknowledging that existing roads are inadequate to handle more
traffic and offering no practical way to obtain better roads.” (South Orange County
Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1619.)
The General Plan Guidelines state “[t]he concept of internal consistency holds that
no policy conflicts can exist, either textual or diagrammatic, between the components of
an otherwise complete and adequate general plan. Different policies must be balanced
and reconciled within the plan.” (General Plan Guidelines, at p. 12.) Without such
consistency, “[d]ecision-makers will face conflicting directives; citizens will be confused
about the policies and standards the community has selected; findings of consistency of
subordinate land use decisions such as rezonings and subdivisions will be difficult to
make; and land owners, business, and industry will be unable to rely on the general plan’s
stated priorities and standards for their own individual decision-making. Beyond this,
inconsistencies in the general plan can expose the jurisdiction to expensive and lengthy
litigation.” (Id. at p. 13.)
The concept of consistency arises at the second stage when a proposed project is
presented for a city’s consideration and approval. “The rule of general plan consistency
is that the project must at least be compatible with the objectives and policies of the
general plan.” (Naraghi Lakes Neighborhood Preservation Assn. v. City of Modesto
(2016) 1 Cal.App.5th 9, 17, italics omitted.) “ ‘ “An action, program, or project is
consistent with the general plan if, considering all its aspects, it will further the objectives
and policies of the general plan and not obstruct their attainment.” ’ ” (Friends of
Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 817.)
B
The 2035 General Plan Is Valid On Its Face
The adoption of a general plan is a legislative act and is presumed valid.
(Federation of Hillside & Canyon Assns. v. City of Los Angeles, supra, 126 Cal.App.4th
at p. 1195; Gov. Code, § 65301.5.) As the parties point out, “[a] petitioner may challenge

5
a general plan on the ground that it does not substantially comply with [the requirements
in Government Code sections 65300 to 65307] by way of petition for writ of mandate
under Code of Civil Procedure section 1085.” (Federation of Hillside, at p. 1195; Gov.
Code, § 65751.) “ ‘Substantial compliance . . . means actual compliance in respect to the
substance essential to every reasonable objective of the statute,’ as distinguished from
‘mere technical imperfections of form.’ ” (Camp v. Board of Supervisors (1981) 123
Cal.App.3d 334, 348, italics omitted.)
“Judicial review of a legislative act under Code of Civil Procedure section 1085 is
limited to determining whether the public agency’s action was arbitrary, capricious,
entirely without evidentiary support, or procedurally unfair. [Citations.] A court
therefore cannot disturb a general plan based on violation of the internal consistency and
correlation requirements unless, based on the evidence before the city council, a
reasonable person could not conclude that the plan is internally consistent or correlative.”
(Federation of Hillside & Canyon Assns. v. City of Los Angeles, supra, 126 Cal.App.4th
at p. 1195.)
The introductory language does not violate Government Code section 65300.5 or
the General Plan Guidelines, as Citizens contends. Government Code section 65300.5
and the General Plan Guidelines require the policies in a general plan as written to be
integrated, internally consistent, and compatible. Citizens points us to no inconsistency
between policies in the 2035 General Plan as written and nothing in the introductory
language creates an inconsistency between the policies either. The introductory language
also says nothing about establishing a hierarchy between the general plan elements. (Cf.
Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698, 702-703, 708 [a
“precedence clause” contained in the land use element of a county’s general plan was
void where such clause provided that if any conflict existed between the open space and
conservation elements of the general plan, the land use element would take precedence].)
The language instead concerns the City’s future determinations of a project’s consistency

6
with the general plan, which is a different and separate issue from whether the policies
within the general plan are internally consistent with one another as required by
Government Code section 65300.5 and the General Plan Guidelines.
Even if the City were to do what Citizens anticipates -- that is, to “create a
hierarchy of General Plan elements, or to approve projects inconsistent with any policy of
the General Plan” in the future -- it would not render the 2035 General Plan invalid. A
finding or determination made separate and independent from the approval of a general
plan and not included as part thereof cannot render the general plan internally
inconsistent or noncorrelative. (Federation of Hillside & Canyon Assns. v. City of Los
Angeles, supra, 126 Cal.App.4th at p. 1197 [a finding not part of the general plan “cannot
make the general plan internally inconsistent or noncorrelative”].) Rather, any such
future decision would be subject to an as-applied challenge at the appropriate time.
Citizens’s challenge faces another substantial obstacle (not addressed by the
parties) because it essentially raises a facial constitutional challenge to the 2035 General
Plan3 on the ground of preemption for conflicting with governing state law. (See T-
Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1116.)
This type of challenge is exacting, but it is also the subject of some confusion. As our
Supreme Court recently explained: “Some cases have held that legislation is invalid if it
conflicts in the generality or great majority of cases. [Citation.] Others have articulated a
stricter standard, holding that legislation is invalid only if it presents a total and fatal
conflict with applicable constitutional [or statutory] prohibitions.” (Id. at p. 1117, fn. 6.)
Under either standard, however, Citizens’s challenge fails.

3 A general plan is local legislation. (Gov. Code, § 65301.5; see Building Industry
Assn. of Central California v. County of Stanislaus (2010) 190 Cal.App.4th 582, 589-
590.)

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 Nothing in the introductory language precludes the City from administering the
2035 General Plan in a lawful and valid manner. Citizens has, therefore, failed to show it
is unavoidable the City will approve projects inconsistent with the 2035 General Plan
such that the introductory language presents a total and fatal conflict with applicable
statutory prohibitions or the conduct is likely to occur in the great majority of cases.
Instead, Citizens attempts to use the following hypothetical to support its argument:
“[The City] could determine, for example, that even though approval of a new industrial
plant would conflict with policies in the General Plan’s Environmental Resources
element, the plant, nevertheless, could be approved as consistent with policies relating to
economic growth.” Citizens’s musings on future potential actions by the City does not,
however, support an invalidation of the 2035 General Plan on its face. The City may
avoid unlawful project/general plan consistency determinations in the future; we decline
to presume the City intends to violate governing law or to consider any hypothetical
future noncompliance with the 2035 General Plan because such disputes are not ripe or
before us. Accordingly, we affirm the trial court’s ruling upholding the 2035 General
Plan.
II
The EIR
A
General CEQA Principles
“ ‘The foremost principle under CEQA is that the Legislature intended the act “to
be interpreted in such manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.” ’ [Citations.] ‘With
narrow exceptions, CEQA requires an EIR whenever a public agency proposes to
approve or to carry out a project that may have a significant effect on the environment.’ ”
(Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511.) A project will have a
significant effect on the environment if it will cause “a substantial, or potentially

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substantial, adverse change in” “the physical conditions which exist within the area
which will be affected by [the] project, including land, air, water, minerals, flora, fauna,
noise, objects of historic or aesthetic significance.” (CEQA Guidelines, 4 §§ 21060.5
[defining “environment”], 21068 [defining “significant effect on the environment”].)
“The basic purpose of an EIR is to ‘provide public agencies and the public in
general with detailed information about the effect [that] a proposed project is likely to
have on the environment; to list ways in which the significant effects of such a project
might be minimized; and to indicate alternatives to such a project.’ [Citations.] ‘Because
the EIR must be certified or rejected by public officials, it is a document of
accountability. If CEQA is scrupulously followed, the public will know the basis on
which its responsible officials either approve or reject environmentally significant action,
and the public, being duly informed, can respond accordingly to action with which it
disagrees.’ [Citation.] The EIR ‘protects not only the environment but also informed
self-government.’ [Citation.]
“The standard of review in a CEQA case, as provided in sections 21168.5 and
21005, is abuse of discretion. Section 21168.5 states in part: ‘In any action or
proceeding . . . to attack, review, set aside, void or annul a determination, finding, or
decision of a public agency on the grounds of noncompliance with this division, the
inquiry shall extend only to whether there was a prejudicial abuse of discretion.’
[Citation.] Our [Supreme Court’s] decisions have thus articulated a procedural
issues/factual issues dichotomy. ‘[A]n agency may abuse its discretion under CEQA
either by failing to proceed in the manner CEQA provides or by reaching factual

4 References to the CEQA Guidelines are to the regulations for the implementation
of CEQA codified in title 14, section 15000 et seq. of the California Code of Regulations,
which have been developed by the Office of Planning and Research and adopted by the
Secretary of the Natural Resources Agency. (§ 21083.)

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conclusions unsupported by substantial evidence. [Citation.] Judicial review of these
two types of error differs significantly: While we determine de novo whether the agency
has employed the correct procedures, “scrupulously enforc[ing] all legislatively mandated
CEQA requirements” [citation], we accord greater deference to the agency’s substantive
factual conclusions. In reviewing for substantial evidence, the reviewing court “may not
set aside an agency’s approval of an EIR on the ground that an opposite conclusion
would have been equally or more reasonable,” for, on factual questions, our task “is not
to weigh conflicting evidence and determine who has the better argument.” ’ ” (Sierra
Club v. County of Fresno, supra, 6 Cal.5th at pp. 511-512, fn. omitted.)
B
The Traffic Analysis Challenge Is Moot
1
Factual Background
The 2035 General Plan’s mobility policy M 1.2.2 states the City will generally
seek to operate the roadway network at level of service (LOS)5 D or better for vehicles
during typical weekday conditions, including morning and afternoon peak hours.
Subdivisions A through D of the policy contain four exceptions to the general policy.
Subdivisions A and B provide all streets in the central city community plan area and the
priority investment areas6 may operate at LOS F. Subdivision C identifies 11 roadways

5 LOS is a way of describing relative traffic congestion on a roadway segment or
intersection. It is based on the ratio of traffic volume to capacity, referring to the delay a
motorist experiences as traffic becomes congested. (See Schaeffer Land Trust v. San
Jose City Council (1989) 215 Cal.App.3d 612, 623.) “An LOS can range from A,
representing free flow conditions, to F, representing jammed conditions.” (Ibid.)
6 Priority investment areas “are subareas of the city that have been identified in the
community plans as important opportunities for future development through infill, reuse,
or redevelopment.”

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that may operate at LOS E and subdivision D identifies 24 roadways that may operate at
LOS F. Subdivision E provides: “If maintaining the above LOS standards would, in the
City’s judgment be infeasible and/or in conflict with the achievement of other goals, LOS
E or F conditions may be accepted provided that provisions are made to improve the
overall system, promote non-vehicular transportation, and/or implement vehicle trip
reduction measures as part of a development project or a city-initiated project.
Additionally[,] the City shall not expand the physical capacity of the planned roadway
network to accommodate a project beyond that identified in Figure M4 and M4a (2035
General Plan Roadway Classification and Lanes).”
In the EIR, the 2035 General Plan’s transportation and circulation impacts were
described, in pertinent part, as follows: “Compared to existing conditions, increases in
vehicle traffic would occur on the City’s roadway network between now and 2035 due to
future population and employment growth. . . . The 2035 General Plan transportation
conditions are compared to the applicable LOS thresholds to determine the significance
of future increases in traffic, accounting for growth between existing and 2035
conditions.”
The traffic impacts to roadway segments within the City were analyzed as follows:
“The proposed Mobility Element was designed to comply with Policy M 1.2.2 of the
General Plan. This policy is the basis for establishing CEQA impact significance
thresholds[7] for this EIR. As shown in Exhibit 4.12-3, implementation of the 2035

7 “A threshold of significance is an identifiable quantitative, qualitative or
performance level of a particular environmental effect, non-compliance with
which means the effect will normally be determined to be significant by the agency and
compliance with which means the effect normally will be determined to be less than
significant.” (CEQA Guidelines, § 15064.7, subd. (a).) “Such thresholds can be drawn
from existing environmental standards, such as other statutes or regulations.” (Protect
the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099,
1107.)

11
General Plan would result in daily traffic volume increases, which in some cases would
reach or exceed capacity (i.e., LOS E or F conditions) on segments of several city
roadways . . . . In most cases traffic would increase under 2035 conditions with
implementation of the proposed 2035 General Plan compared to existing conditions . . . .
Daily traffic volumes in 2035 would result in a high utilization of roadways as indicated
by LOS F conditions on multiple roadways within the City, including those previously
listed in Policy M 1.2.2 section C. Roadways experiencing LOS E or F under daily
conditions would also likely experience similar conditions during peak hours. In all of
these cases, the LOS E or F results have been accepted in Policy M 1.2.2. [¶] Although
traffic volumes are projected to increase, the application of the new LOS standards
identified in proposed Policy M 1.2.2 would mean that implementation of the 2035
General Plan would not result in significant LOS impacts based on the 2035 horizon year
analysis. This conclusion is consistent with the increased priority on multi-modal
mobility within the city, rather than just automobile delay and travel times. . . . This
impact is considered less than significant.” The City correspondingly concluded no
mitigation measures were required.
2
Why The Challenge Is Moot
Citizens argues that, by relying on the 2035 General Plan’s new LOS thresholds of
significance for its finding of a less than significant impact on traffic, the City “avoided
studying the significance of traffic impacts degrading to LOS F, did not conclude that
such impacts were insignificant based on substantial evidence, and did not adequately
analyze alternatives or mitigation measures.” At bottom, Citizens’s traffic analysis
challenge relies on the premise that the 2035 General Plan’s impacts on traffic congestion
in certain areas of the City constitute significant impacts within the meaning of CEQA,
and that the City failed to properly analyze and mitigate such impacts.

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 We requested supplemental briefing from the parties regarding the applicability
and impact, if any, of CEQA Guidelines section 15064.3 on this appeal. The section
“describes specific considerations for evaluating a project’s transportation impacts” and
provides that, except for roadway capacity projects, “a project’s effect on automobile
delay shall not constitute a significant environmental impact.” (CEQA Guidelines,
§ 15064.3, subd. (a).) It further provides that, “[g]enerally, vehicle miles traveled is the
most appropriate measure of transportation impacts” and sets forth criteria for analyzing
transportation impacts for land use and transportation projects. (Id., subds. (a)-(b).) The
regulation was promulgated, in part, pursuant to section 21099 and certified by the
Secretary of the Natural Resources Agency before being approved by the Office of
Administrative Law on December 28, 2018.
CEQA Guidelines section 15064.3 applies “prospectively as described in [CEQA
Guidelines] section 15007”; however, “[a] lead agency may elect to be governed by the
provisions of this section immediately.” (CEQA Guidelines, § 15064.3, subd. (c).)
“Beginning on July 1, 2020, the provisions of this section shall apply statewide.” (Ibid.)
Although CEQA Guidelines section 15064.3 applies prospectively, section 21099,
subdivision (b)(2) provides that, “[u]pon certification of the guidelines by the Secretary
of the Natural Resources Agency pursuant to this section, automobile delay, as described
solely by level of service or similar measures of vehicular capacity or traffic congestion
shall not be considered a significant impact on the environment pursuant to this division,
except in locations specifically identified in the guidelines, if any.” The division
referenced in the statute is division 13 on environmental quality, section 21000 et seq.
(i.e., CEQA).
The City argues section 21099, subdivision (b)(2) renders Citizens’s traffic
impacts argument moot because the Secretary of the Natural Resources Agency certified
CEQA Guidelines section 15064.3 in late 2018. Citizens in turn argues the regulation is
inapplicable because it applies prospectively only and, to the extent it applies, the

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regulation would support its “argument that the EIR’s traffic analysis is legally deficient”
because the City did not analyze the 2035 General Plan’s traffic impacts under the
vehicle miles traveled criteria.
We agree with the City. In mandamus proceedings like this one, “the law to be
applied is that which is current at the time of judgment in the appellate court.” (Callie v.
Board of Supervisors (1969) 1 Cal.App.3d 13, 18-19; see also Fairbank v. City of Mill
Valley (1999) 75 Cal.App.4th 1243, 1255-1257, fn. 12 [“where no vested rights will be
impaired, it is appropriate for an appellate court to apply the law in existence at the time
of its decision rather than at the time an approval was issued”].) Under section 21099,
subdivision (b)(2), existing law is that “automobile delay, as described solely by level of
service or similar measures of vehicular capacity or traffic congestion shall not be
considered a significant impact on the environment” under CEQA, except for roadway
capacity projects. Accordingly, the 2035 General Plan’s impacts on LOS (i.e.,
automobile delay) cannot constitute a significant environmental impact, as Citizens
argues, rendering Citizens’s traffic impacts argument moot. Further, because CEQA
Guidelines section 15064.3 is prospective and does not presently require the City to use
the criteria set forth therein, Citizens’s argument that the City failed to analyze the 2035
General Plan’s traffic impacts under the vehicle miles traveled criteria in the regulation
fails as well.
C
The “No Project” Alternative Analysis Challenge Is Unsupported
Citizens believes the EIR’s alternatives analysis is legally deficient because “the
EIR’s truncated discussion of alternatives contained no quantified analysis for any of its
proposed alternatives, which were dismissed without sufficient consideration.” Its

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argument, however, addresses only the “no project” alternative discussion; we address
only the argument presented.8
1
Factual Background
The “No Project/2030 General Plan Alternative” “assumes development would
occur consistent with the existing land use designations in the [C]ity, or those of the
existing 2030 General Plan (as currently amended).” The 2030 General Plan and the
2035 General Plan generally have the same project objectives; “however, the . . . 2035
General Plan takes further steps to improve energy efficiency and reduced [greenhouse
gas] emissions, as well as re-prioritizing the various modes of transportation to increase
the sustainability of the transportation system and promote connectivity.”
Because “there [wa]s no difference between the [2030 General Plan and the 2035
General Plan] with respect to the buildout in the respective horizon years (2030 and
2035),” the impacts associated primarily with ground disturbance, conversion or
consumption of on-the-ground resources, and demand for services such as public
services, utilities, and parks were considered to be similar under the two general plans.
The primary differences between the two general plans were identified as the
climate action plan and more aggressive flood protection policies included in the 2035

8 An appellant must direct us to the parts of the record that show the claimed error.
“An appellate court is not required to search the record to determine whether or not the
record supports appellant[’s] claim of error. It is the duty of counsel to refer the
reviewing court to the portions of the record which support appellant[’s] position.”
(Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835.) Under the California
Rules of Court, each brief must “[s]upport any reference to a matter in the record by a
citation to the volume and page number of the record where the matter appears.” (Cal.
Rules of Court, rule 8.204(a)(1)(C).) “If no citation ‘is furnished on a particular point,
the court may treat it as [forfeited].’ ” (Guthrey v. State of California (1998) 63
Cal.App.4th 1108, 1115.)

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General Plan and the change in traffic LOS standards. Differences in visual impacts and
potential impacts on river crossings were also briefly mentioned.
The discussion regarding the climate action plan provides that “[i]mplementation
of the incorporated [climate action plan] policies would increase energy efficiency and
decrease [vehicle miles traveled], which would reduce citywide criteria air pollutant and
[greenhouse gas] emissions. Because the No Project/2030 General Plan does not include
these policies, the impacts associated with [greenhouse gas] and air quality would be
greater than the proposed 2035 General Plan.” The City further explained that the 2030
General Plan “may not be as consistent as the [2035] General Plan with the provisions of
Senate Bill (SB) 375 and 743, because the [vehicle miles traveled]-reducing policies from
the 2012 [climate action plan] would be omitted” and “the 2030 General Plan’s flood
protection policies, although effective in 2009 when the plan was adopted, are not
currently consistent with SB 5 and the 2012 [Central Valley Flood Protection Plan].”
With respect to the change in traffic LOS standards, the City analyzed the
comparative environmental effects, in pertinent part, as follows: “The current 2030
General Plan includes LOS E standards in multi-modal areas. The proposed 2035
General Plan provides a LOS ‘exemption’ (allows LOS F) to the [priority investment
areas] and LOS E and F to other specified roadways. Therefore, the No Project/2030
General Plan would result in greater impacts (i.e., additional exceedances of the City’s
LOS standard) than the proposed 2035 General Plan. However, it should be noted that
this difference in impact is due only to the change in the standard; the actual physical
effect (traffic congestion) would be substantially similar between the No Project/2030
General Plan Alternative and the proposed 2035 General Plan.”
The City further explained in the section titled “[m]itigation that would no longer
be required”: “The No Project/2030 General Plan Alternative would not eliminate any
necessary mitigation measures identified for the proposed 2035 General Plan. Because
the No Project/2030 General Plan Alternative would not result in a change to the traffic

16
LOS standard, it is possible that additional mitigation measures would be necessary on
specific roadways to improve LOS.” The City then concluded “[t]he No Project/2030
General Plan alternative would not avoid any significant and unavoidable impacts
associated with the proposed 2035 General Plan.”
In its findings of fact and statement of overriding considerations supporting the
resolution approving the EIR, the City found the “no project” alternative infeasible
because it would not further the City’s objectives of “incorporating the City’s [climate
action plan] into the policies of the General Plan, further focusing development into the
City’s core and priority investment areas, and facilitating more sustainable, multi-modal
transportation infrastructure.” The City further explained that the “no project” alternative
“would generally result in greater impacts than the proposed project and would not avoid
any significant impacts associated with the project.”
2
“No Project” Alternative Analysis Requirements
An EIR must discuss the “no project” alternative and its environmental impact and
provide sufficient information for meaningful evaluation of the comparative merits of the
alternative and the proposed project. (CEQA Guidelines, § 15126.6, subds. (d), (e)(1).)
The analysis must include a discussion of the existing environmental conditions “as well
as what would be reasonably expected to occur in the foreseeable future if the project
were not approved, based on current plans and consistent with available infrastructure
and community services.” (Id., subd. (e)(2).) The purpose of this requirement is to
facilitate a comparison between the environmental advantages and disadvantages of the
proposed project and what would result if the project were disapproved. (CEQA
Guidelines, §15126.6, subd. (e)(1); Planning & Conservation League v. Department of
Water Resources (2000) 83 Cal.App.4th 892, 917-918.)
Before a public agency may approve a project for which an EIR identifies a
significant environmental impact, the agency must make a finding that “[s]pecific

17
economic, legal, social, technological, or other considerations . . . make infeasible the . . .
alternatives identified in the [EIR].” (§ 21081, subd. (a)(3).) Such a finding must be
based on “substantial evidence in the record.” (§ 21081.5.) “[S]ubstantial evidence
includes fact, a reasonable assumption predicated upon fact, or expert opinion supported
by fact.” (§ 21080, subd. (e)(1).) According to the CEQA Guidelines, substantial
evidence “means 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.” (CEQA Guidelines, § 15384, subd. (a).) In
reviewing the record for substantial evidence, we presume the agency’s findings are
correct and resolve all conflicts and reasonable doubts in favor of the findings. (Center
for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 881-
882.)
3
Why The Challenge Is Unsupported
Citizens believes the “no project” alternative analysis relating to traffic impacts
was nonsensical, unpersuasive, and speculative. As we can best ascertain, however,
Citizens challenges only the City’s rejection of the “no project” alternative; it does not
challenge (with argument and citations to the record) the sufficiency of the City’s “no
project” discussion or analysis under CEQA Guidelines section 15126.6. (In re Steiner
(1955) 134 Cal.App.2d 391, 399 [“A point which is merely suggested by appellant’s
counsel, with no supporting argument or authority, is deemed to be without foundation
and requires no discussion”]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14
[the failure to present argument with references to the record and citation to legal
authority results in a forfeiture of any assertion that could have been raised]; Badie v.
Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when an appellant fails to raise a
point, or fails to support a point with reasoned argument and citations to authority, it is
forfeited].)

18
 Citizens asserts: (1) the City’s “justification for rejecting the ‘no project
alternative’ . . . by accepting failing traffic conditions” “is nonsensical, as by allowing
increased traffic congestion on the City’s streets, the 2035 General Plan will undoubtedly
cause worsening environmental impacts”; and (2) “[t]he City’s purported justification for
rejecting the ‘no project alternative’ is speculative insofar as it relies on the City’s
unsupported statement that ‘it is possible that additional mitigation measures would be
necessary [on specific roadways to improve LOS]’ ” under the 2030 General Plan.
(Bolding and italicizing omitted.)9
The City counters that the analysis “included both qualitative and quantitative
analysis” and the City appropriately adopted and applied the policy decision to modify
the LOS standards in mobility policy M 1.2.2. In its supplemental brief, the City further
argues that the issue is moot under section 21099, subdivision (b)(2) because “ ‘traffic
congestion’ is no longer a measure of environmental impacts.” We disagree that the
issue is moot, but find no deficiency under CEQA.
Section 21099, subdivision (b)(2) provides only that automobile delay as
described by LOS shall not be considered a significant impact on the environment. The
“no project” analysis issue does not turn on whether the 2035 General Plan’s impacts
relating to automobile delay constituted a significant impact on the environment (like the
traffic impacts analysis ante), but instead turns on whether the City’s rejection of the “no
project” alternative was supported by substantial evidence. Accordingly, the issue was

9 In its reply brief, Citizens also argues that the analysis did not include “an accurate
comparison between the true impacts of the 2035 General Plan and the impacts that
would exist under the ‘no project alternative’ (i.e., under the 2030 General Plan)” because
the analysis did not consider the supplemental changes adopted after the City completed
its alternatives analysis. “[W]e do not consider points raised for the first time in the reply
brief absent a showing of good cause for the failure to present them earlier.” (Allen v.
City of Sacramento (2015) 234 Cal.App.4th 41, 52.)

19
not rendered moot by the Secretary of the Natural Resources Agency’s certification of
CEQA Guidelines section 15064.3.
The problem with Citizens’s arguments is that the City’s “justification for
rejecting the ‘no project alternative’ ” was not based on the revised LOS standards in the
2035 General Plan or the statement that “ ‘it is possible that additional mitigation
measures would be necessary [on specific roadways to improve LOS]’ ” under the 2030
General Plan, as Citizens contends. (Bolding and italicizing omitted.) Rather, the City
rejected the alternative as infeasible because the 2030 General Plan failed to further some
of the City’s objectives, generally resulted in greater impacts,10 and would not avoid any
significant impacts associated with the 2035 General Plan. Citizens fails to advance any
argument with citation to the record and appropriate authority to demonstrate that the
finding was not based on substantial evidence. Any such argument has, therefore, been
forfeited. (In re Steiner, supra, 134 Cal.App.2d at p. 399; Nwosu v. Uba, supra, 122
Cal.App.4th at p. 1245, fn. 14; Badie v. Bank of America, supra, 67 Cal.App.4th at
pp. 784-785.)
D
Recirculation Was Not Required
Citizens argues the City should have recirculated the EIR after it made the
supplemental changes released to the public on February 24, 2015, because four of those
changes constituted significant new information. The City disagrees. We conclude
recirculation was not required.

10 The EIR provides the 2030 General Plan would result in greater impacts to air
quality, land use, greenhouse gas and climate change, and transportation and circulation
than the 2035 General Plan.

20
 1
When Recirculation Is Required
An agency must recirculate an EIR when “significant new information is added to
an environmental impact report” after the agency has made the draft EIR available for
public review and has consulted with other agencies but before the EIR is certified.
(§ 21092.1; CEQA Guidelines, § 15088.5, subd. (a).) Recirculation means making the
revised EIR available for public review and consulting with the other agencies again
before certifying the EIR. (CEQA Guidelines, § 15088.5, subd. (d).) “New information
added to an EIR is not ‘significant’ unless the EIR is changed in a way that deprives the
public of a meaningful opportunity to comment upon a substantial adverse environmental
effect of the project or a feasible way to mitigate or avoid such an effect (including a
feasible project alternative) that the project’s proponents have declined to implement.”
(Id., subd. (a).)
“ ‘Significant new information’ requiring recirculation include, for example, a
disclosure showing that: [¶] (1) A new significant environmental impact would result
from the project or from a new mitigation measure proposed to be implemented[;] [¶]
(2) A substantial increase in the severity of an environmental impact would result unless
mitigation measures are adopted that reduce the impact to a level of insignificance[;] [¶]
(3) A feasible project alternative or mitigation measure considerably different from others
previously analyzed would clearly lessen the significant environmental impacts of the
project, but the project’s proponents decline to adopt it[;] [¶] (4) The draft EIR was so
fundamentally and basically inadequate and conclusory in nature that meaningful public
review and comment were precluded.” (CEQA Guidelines, § 15088.5, subd. (a).)
“In other words, recirculation is not required simply because new information is
added. As the California Supreme Court observed in Laurel Heights Improvement Assn.
v. Regents of University of California (1993) 6 Cal.4th 1112 . . . , ‘the final EIR will
almost always contain information not included in the draft EIR’ given the CEQA

21
statutory requirements of circulation of the draft EIR, public comment, and response to
these comments prior to certification of the final EIR. [Citation.] But ‘[r]ecirculation
was intended to be an exception, rather than the general rule.’ ” (South County Citizens
for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 328.)
We review the City’s decision not to recirculate the EIR for substantial evidence,
resolving reasonable doubts in favor of the administrative finding and decision. (CEQA
Guidelines, § 15088.5, subd. (e); Laurel Heights Improvement Assn. v. Regents of
University of California, supra, 6 Cal.4th at p. 1135.) Substantial evidence means
“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.” (CEQA Guidelines, § 15384, subd. (a).) “ ‘As with all substantial evidence
challenges, an appellant challenging an EIR for insufficient evidence must lay out the
evidence favorable to the other side and show why it is lacking. Failure to do so is fatal.
A reviewing court will not independently review the record to make up for appellant’s
failure to carry his burden.’ ” (South County Citizens for Smart Growth v. County of
Nevada, supra, 221 Cal.App.4th at p. 330.)
Citizens bears the burden of proving a double negative, that the City’s decision not
to recirculate the EIR is not supported by substantial evidence. (South County Citizens
for Smart Growth v. County of Nevada, supra, 221 Cal.App.4th at p. 330.) “That is,
[Citizens] must demonstrate that there is no substantial evidence to support a
determination that the [changes were] not significant new information.” (Ibid.)
2
Why Recirculation Was Not Required
The supplemental changes Citizens contends required recirculation were:
(1) number 7 -- deleting the volume-to-capacity ratios on specific roadways for which
LOS F would be allowed in mobility policy M 1.2.2; (2) number 9 -- deleting mobility
policy M.1.2.6, which provided “[t]he City shall limit the application of the maximum

22
daily volume/capacity ratios identified in Policy 1.2.2 to development projects requiring a
General Plan Amendment”; (3) number 8 -- deleting mobility policy M 1.2.5, which
provided, in part, that “[t]o maintain acceptable LOS E or F conditions, the City may
require applicable vehicle trip reduction measures and physical improvements that
increase transit use, bicycling or walking and traffic operational improvements”; and
(4) number 10 -- modifying land use policy LU 4.5.5 regarding connections to transit
from requiring new neighborhoods to include transit stops to encouraging such transit
stops.
Citizens argues the four changes “create[d] significant new CEQA impacts and
significantly worsen[ed] already significant impacts.” CEQA Guidelines section 15358
defines “effects” and “impacts” (used synonymously) to include “[d]irect or primary
effects which are caused by the project and occur at the same time and place” and
“[i]ndirect or secondary effects which are caused by the project and are later in time or
farther removed in distance, but are still reasonably foreseeable.” Such effects must
relate to a physical change in the environment. (CEQA Guidelines, § 15358, subd. (b).)
Citizens fails to show how the elimination of the volume-to-capacity ratios in
supplemental changes numbers 7 and 9 resulted in or substantially increased the severity
of an environmental impact.11 Citizens argues the ratio elimination will “further
exacerbate already failing traffic conditions” because the ratios established “limits to how
congested [the roads] could become.” In the absence of the ratios, Citizens argues, the
City would allow “unlimited and unmitigated congestion on each of th[e] roadway

11 The City argues the recirculation challenge relating to these supplemental changes
was rendered moot under section 21099, subdivision (b)(2) when the Secretary of the
Natural Resources Agency certified CEQA Guidelines section 15064.3. We disagree.
The issue does not turn on whether the impacts relating to automobile delay constituted a
significant impact on the environment, but instead turns on whether the City’s decision
not to recirculate the EIR is not supported by substantial evidence.

23
segments.” The problem with Citizens’s argument is that the ratios themselves would
have no physical impact on the environment because the ratios would not change the
amount of traffic that would result from or be caused by the project. Although the
volume-to-capacity ratios were deleted in the final EIR, there was no change in the
projected amount of traffic on the roadway segments between the draft and final EIRs.
Thus, there was no new or exacerbated impact.
The ratios would further apply only to future development projects requiring a
general plan amendment, and Citizens points us to no evidence in the record that any
such projects were being contemplated or considered during the project time frame.
(Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182,
206 [an agency need not forecast the unforeseeable].) Citizens’s belief that the City
would allow unlimited and unmitigated congestion is not evidence.
In the chart discussing the supplemental changes, the City wrote: “The changes to
Policy 1.2.2 would result in no change in the development assumptions utilized for
analysis in the Master EIR, nor would any change in development activity in the Policy
Area result. Thus, there would be no change in the physical changes in the environment
that could occur as a result of adoption of the 2035 General Plan. [¶] The proposed
changes would provide flexibility in the determination of general plan consistency in
cases where road improvements to meet LOS goals were found to be infeasible. In such
cases, the City could achieve consistency by making a determination of infeasibility,
accompanied by a finding that the project had contributed to improvements in the City’s
overall transportation system.” The City further wrote: “Policy 1.2.6 would be deleted
because the calculation of volume to capacity ratio for roadways is a technical tool that
will be used at project impact level analysis and not at the General Plan Policy level.”
Citizens fails to meet its burden of proof; it fails to show substantial evidence does
not support the City’s determination that the change was not significant information
warranting recirculation. (South County Citizens for Smart Growth v. County of Nevada,

24
supra, 221 Cal.App.4th at p. 330.) The same is true of Citizens’s arguments regarding
supplemental changes numbers 8 and 10.
Citizens cursorily argues change number 8 would exacerbate failing traffic
conditions by deleting language providing for traffic operation improvements,12 and the
modification to land use policy LU 4.5.5 in change number 10 “is sufficiently significant
to require recirculation of the EIR.” Neither statement is supported with reasoned
analysis or citations to evidence in the record. Accordingly, Citizens has forfeited its
challenge to those supplemental changes and we see no basis for concluding recirculation
of the EIR was required. (In re Steiner, supra, 134 Cal.App.2d at p. 399; Nwosu v. Uba,
supra, 122 Cal.App.4th at p. 1245, fn. 14; Badie v. Bank of America, supra, 67
Cal.App.4th at pp. 784-785.)
E
Citizens Has Not Shown The Greenhouse Gas
Emissions And Air Quality Analyses Were Inadequate
Citizens’s argument challenging the greenhouse gas emissions and air quality
analyses comprises less than half of a page. First, Citizens argues the City’s greenhouse
gas emissions and air quality analyses were inadequate because the analyses failed to
incorporate or consider the impacts from deletion of the volume-to-capacity ratios in
supplemental changes numbers 7 and 9. As we explained ante, however, the deletion of
the volume-to-capacity ratios did not result in environmental impacts.
Second, Citizens states, without explanation, argument, or development, the
greenhouse gas emissions analysis was inadequate because it was predicated and

12 The City argues the recirculation challenge relating to this supplemental change
was rendered moot under section 21099, subdivision (b)(2) when the Secretary of the
Natural Resources Agency certified CEQA Guidelines section 15064.3. We disagree for
the same reason discussed in footnote 11.

25
dependent upon the faulty traffic analysis and “the EIR was required -- but failed -- to
include all feasible mitigation measures, and to determine whether the impacts to
sensitive receptors will be significant, or can be reduced to less than significant levels.”
We do not consider Citizens’s unsupported and undeveloped arguments.
It is a well-established principle that “an appellant challenging an EIR for
insufficient evidence must lay out the evidence favorable to the other side and show why
it is lacking. Failure to do so is fatal. A reviewing court will not independently review
the record to make up for appellant’s failure to carry his burden.” (Defend the Bay v. City
of Irvine (2004) 119 Cal.App.4th 1261, 1266.)
We conclude Citizens has failed to show the greenhouse gas emissions and air
quality analyses were inadequate.
F
Citizens Has Not Shown The Cyclist Safety Analysis Was Inadequate
Vehicle Code section 21760 generally requires a motorist to maintain at least a
three-foot distance from a cyclist when passing. If this distance cannot be maintained,
the motorist must slow to a reasonable and prudent speed and pass only when doing so
would not endanger the safety of the cyclist. Citizens argues, in less than a page, the EIR
failed to account for the three-foot requirement and the “acceptance of failing traffic
conditions, when coupled with California’s Three-Foot Cyclist law, will further
contribute to traffic delays, dangerous cycling conditions, and the overall dysfunction of
the City’s transportation system.” The City responds that its analysis of cyclist safety
was sufficient and it was not required to analyze traffic delays or dangerous conditions
created by the statute.
To the extent Citizens challenges the sufficiency of the cyclist safety analysis
(apart from its assertion that the City should have considered the three-foot rule in its
analysis), we decline to consider the argument because Citizens failed to support the
argument with reasoned analysis or citations to evidence in the record. (In re Steiner,

26
supra, 134 Cal.App.2d at p. 399; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1245,
fn. 14; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
Citizens’s argument regarding Vehicle Code section 21760 fares no better. The
entire argument consists of the following hypothetical: “By way of example, large
portions of ‘H’ Street are less than 32 feet wide ‘curb to curb.’ [Citation.] A ‘bike lane’
is striped on both sides of the street. These ‘bike lanes’ are close to the six-foot width
required by state law, leaving a maximum of 10 feet for one lane of cars in each
direction. This already tight roadway is made even more dangerous by conflicting
parking and cycling needs. The allowed parking completely swallows the bike lane,
forcing cyclists into the flow of vehicle traffic that is traveling in the already too-narrow
traffic lane. Nevertheless, there is no discussion in the EIR of the Three-Foot Cyclist
law, and no analysis of the significant risk to motorists and cyclists that will be caused by
the General Plan’s Mobility Policy that allows unmitigated LOS F conditions on narrow
residential streets.”
While personal observations are evidence that may properly be considered in the
context of an administrative hearing, “ ‘in the absence of a specific factual foundation in
the record, dire predictions by nonexperts regarding the consequences of a project do not
constitute substantial evidence.’ [Citation.] ‘Unsubstantiated opinions, concerns, and
suspicions about a project, though sincere and deeply felt, do not rise to the level of
substantial evidence . . . .’ [Citation.] Thus, ‘project opponents must produce . . .
evidence, other than their unsubstantiated opinions, that a project will produce a
particular adverse effect.’ ” (Banker’s Hill, Hillcrest, Park West Community
Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 274.) Citizens
points us to nothing in the record establishing a factual foundation for the claim that the
project would cause new or worsened impacts to cyclist safety. We, therefore, conclude
Citizens has not shown the analysis was inadequate.

27
 DISPOSITION
We affirm the judgment. The City shall recover its costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1)-(2).)

/s/
Robie, J.

We concur:

/s/
Raye, P. J.

/s/
Krause, J.

28
Filed 12/18/19
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)

CITIZENS FOR POSITIVE GROWTH & C086345
PRESERVATION,
(Super. Ct. No.
Plaintiff and Appellant, 34201580002058CUWMGDS)

v. ORDER CERTIFYING
OPINION FOR PUBLICATION
CITY OF SACRAMENTO et al.,

Defendants and Respondents.

THE COURT:
The opinion in the above-entitled matter filed on November 26, 2019, was not
certified for publication in the Official Reports. For good cause, it now appears that the
opinion should be published in the Official Reports and it is so ordered.
BY THE COURT:

/s/
Raye, P. J.

/s/
Robie, J.

/s/
Krause, J.

1
 EDITORIALS

APPEAL from a judgment of the Superior Court of Sacramento County, Michael
P. Kenny, Judge. Affirmed.

Brown Rudnick, Stephen R. Cook, Soshana B. Kaiser; Larsen Willis & Woodard
and Geoffrey K. Willis for Plaintiff and Appellant.

Susana A. Wood, City Attorney, Brett M. Witter, Senior Deputy City Attorney;
Stoel Rives, Timothy M. Taylor, Allison C. Smith, Parissa E. Florez for Defendants and
Respondents.

2