Save the Hill Group v. City of Livermore

Filed 3/30/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SAVE THE HILL GROUP,
Plaintiff and Appellant,
v. A161573
CITY OF LIVERMORE,
Defendant and Respondent; (Alameda County
LAFFERTY COMMUNITIES, INC., Super. Ct. No. RG19020186)

Real Party in Interest and
Respondent.

This appeal is from a superior court judgment denying a petition for
writ of mandate filed by appellant, Save the Hill Group (Save the Hill), a
private group of concerned residents, against respondents, developer and real
party in interest, Lafferty Communities, Inc. (Lafferty),1 and the City of
Livermore (City). Save the Hill seeks to have set aside the City’s decisions to
approve a residential housing development project known as the Garaventa
Hills Project (the Project) and to certify a reissued final environmental
impact report (RFEIR) under the California Environmental Quality Act
(CEQA) (Pub. Resources Code, § 2100 et seq.).2

1 Lafferty was formerly known as Livermore LT Venture I Group, LLC.
Unless otherwise stated, all statutory citations herein are to the
2

Public Resources Code. Subsequent references to “Guidelines” are to the

1
 For reasons that follow, we conclude Save the Hill has raised a
challenge to the adequacy of the RFEIR’s analysis of the “no project”
alternative that is both preserved for appeal and meritorious. The RFEIR’s
certification and the Project’s approval therefore cannot stand. Accordingly,
we reverse and remand to the superior court for further proceedings
consistent with the opinion set forth post.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Project and Project Site.
On July 27, 2011, Lafferty submitted a development application for 76
homes on a 31.7-acre project site in the Garaventa Hills that is the last
remaining undeveloped area in that section of the City of Livermore
(hereinafter, Project Site). The initial proposed development included a
looped roadway system and a two-way vehicular and pedestrian connector
bridge over Altamont Creek, which crosses the Project Site. On
November 16, 2011, the City issued a notice of preparation of a draft
environmental impact report (DEIR), which was published a year later, in
November 2012.
The DEIR described the Project Site, known as Garaventa Hills, as
“moderately steeply sloping” with two prominent knolls at the center and an
intermittent stream channel, Altamont Creek, at the southern boundary.
Garaventa Hills consists of predominately non-native grassland habitat.
West of the Project Site is the 24-acre Garaventa Wetlands Preserve, owned
and managed by the Livermore Area Recreation and Park District (LARPD).
The Project Site, together with the Garaventa Wetlands Preserve, provides
habitat for a variety of special-status species protected under the California

CEQA guidelines found in California Code of Regulations, title 14, section
15000 et seq.

2
Endangered Species Act and/or the federal Endangered Species Act. These
species include the California red-legged frog, California tiger salamander,
California burrowing owl, San Joaquin kit fox, western spadefoot toad, vernal
pool fairy shrimp, Livermore tarplant, palmate-bracted bird’s beak, and
Congdon’s tarplant.
The area of the Garaventa Hills and Wetlands Preserve is
hydrologically connected to the Springtown Alkali Sink, a unique alkaline
wetlands area owned and managed by the Wetlands Exchange in cooperation
with the City, the California Department of Fish and Wildlife (CDFW), and
the U.S. Fish and Wildlife Service (USFWS). The DEIR recognized that any
alterations to existing drainage patterns in the Garaventa Hills may affect
the quantity, timing and quality of precipitation that enters these wetlands
and which is needed to maintain a functioning ecosystem.
When comments on the DEIR were solicited from the public, it became
clear there was considerable opposition to Lafferty’s original proposal.
Lafferty therefore altered course and proposed a more modest project that
reduced the number of residential units from 76 to 47, eliminated the
vehicular bridge, and preserved a large rock outcropping. The City then
released a final environmental impact report (FEIR) in June 2014.
On July 1, 2014, the City’s planning commission recommended that the
city council reject Lafferty’s second proposal due to concerns about grading,
aesthetics and comments by the LARPD regarding compatibility with the
Garaventa Wetlands Preserve. The city council agreed and, on
September 14, 2015, declined to certified the FEIR or approve Lafferty’s
second proposed project.
Lafferty, therefore, returned to the drawing board and, on September 8,
2017, submitted a revised application. This smaller-scale project consisted of

3
44 new residences, and a pedestrian bridge across Altamont Creek that
would also serve as a secondary emergency vehicle access (EVA) road. In
August 2018, the City published the RFEIR. According to the RFEIR, the
project would result in the permanent removal of 31.78 acres of grasslands
with an additional 1.18 acres being temporarily disturbed for construction of
the pedestrian bridge and EVA road. To address these and other
environmental impacts, various mitigation measures were proposed,
including acquisition of an 85-acre compensatory mitigation site (the Bluebell
site) located in the Springtown Alkali Sink.
II. The Approval and RFEIR Certification Process.
On August 23, 2018, the City held a neighborhood meeting to discuss
the revised Project. On December 4, 2018, the planning commission then
conducted a public hearing to consider the RFEIR. Afterward, the planning
commission unanimously agreed to recommend that the city council approve
the RFEIR with a few changes, including a reduction in the number of
proposed residences from 47 to 44.
On April 22, 2019, the city council held a public hearing on the RFEIR
with the planning commission’s proposed changes. After the planning
commission presented the RFEIR and numerous citizens, including
representatives of Save the Hill, commented on it, the city council adopted a
resolution certifying the RFEIR and approving the Project that is now before
us. The following day, the City filed its notice of determination.
III. The Petition.
On May 23, 2019, Save the Hill filed a petition for writ of mandate
(petition) asserting causes of action for, among other things, failure to
consider significant environmental impacts, to adequately investigate and
evaluate the no-project alternative to the Project, and to mitigate significant

4
environmental impacts. Save the Hill asked the superior court to set aside
and vacate the Project’s approval and certification of the RFEIR and to order
the City to prepare a legally adequate environmental impact report (EIR).
The administrative record was lodged on September 5, 2019, and a hearing
was set for January 10, 2020.
IV. The Superior Court’s Order.
On January 16, 2020, the superior court issued a tentative order
finding the RFEIR’s determination of infeasibility for the no-project
alternative inadequate because it failed to disclose and evaluate the
possibility of using existing mitigation funding to make the no-project
alternative feasible. The court then asked for supplemental briefing on the
issue whether Save the Hill exhausted its administrative remedies in
challenging the RFEIR as inadequate on this basis.
On April 20, 2020, the superior court issued its final order denying
Save the Hill’s petition. Judgment was entered in respondents’ favor on
September 23, 2020. This appeal followed.
DISCUSSION
Save the Hill contends the superior court erred by finding that it failed
to exhaust administrative remedies before raising a legal challenge to the
adequacy of the RFEIR’s evaluation of the possibility of having no project as a
reasonable alternative to the Project. Additionally, Save the Hill contends
the City violated CEQA by certifying an RFEIR that failed to: (1) adequately
evaluate the no-project alternative; (2) adequately evaluate or mitigate the
Project’s environmental impacts on the threatened vernal pool fairy shrimp
and the hydrologically significant Springtown Alkali Sink; (3) identify
appropriate compensatory mitigation for the permanent loss of about 32 acres
of seasonal wetlands; and (4) evaluate the possibility of preserving Garaventa

5
Hills as a means to meet the City’s unrelated contractual obligations to
acquire environmentally significant properties to mitigate the environmental
harms of other projects. We begin with the relevant law.
I. The CEQA Framework.
The Legislature intended CEQA “ ‘ “to be interpreted in such manner
as to afford the fullest possible protection to the environment within the
reasonable scope of the statutory language.” ’ ” (Sierra Club v. County of
Fresno (2018) 6 Cal.5th 502, 511 (Sierra Club).) “ ‘ “[T]he purpose of CEQA is
to protect and maintain California’s environmental quality. With certain
exceptions, CEQA requires public agencies to prepare an EIR for any project
they intend to carry out or approve whenever it can be fairly argued on the
basis of substantial evidence that the project may have a significant
environmental effect . . . .” [Citation.] The California Supreme Court has
“repeatedly recognized that the EIR is the ‘heart of CEQA.’ [Citations.] ‘Its
purpose is to inform the public and its responsible officials of the
environmental consequences of their decisions before they are made. Thus,
the EIR “protects not only the environment but also informed self-
government.” ’ ” ’ ([Citation], quoting Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal.4th 1112, 1123 [26
Cal.Rptr.2d 231, 864 P.2d 502].)” (California Clean Energy Committee v. City
of Woodland (2014) 225 Cal.App.4th 173, 186 (California Clean Energy).)
An EIR is “an informational document” designed “to provide public
agencies and the public in general with detailed information about the effect
which 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.” (§ 21061, 2d par.; Guidelines,
§ 15003, subds. (b)–(e).) “ ‘Because the EIR must be certified or rejected by

6
public officials, it is a document of accountability.’ ” (Sierra Club, supra, 6
Cal.5th at p. 512.) The general public, “ ‘being duly informed, can respond
accordingly to action with which it disagrees.’ ” (Ibid.)
An interested party may enforce a public agency’s compliance with
CEQA by petitioning the superior court for issuance of a writ of mandate.
(Pub. Resources Code, §§ 21168.9, subd. (b), 21177; Code Civ. Proc., § 1086
[for standing to seek writ of mandate, party must be “beneficially interested”
in the litigation’s subject matter].) “An appellate court’s review of the
administrative record for legal error and substantial evidence in a CEQA case
. . . is the same as the trial court’s: [We] review[] the agency’s action, not the
trial court’s decision; in that sense appellate judicial review under CEQA is
de novo.’ [Citations.] We therefore resolve the substantive CEQA issues on
which we granted review by independently determining whether the
administrative record demonstrates any legal error by the [agency] and
whether it contains substantial evidence to support the [agency’s] factual
determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City
of Rancho Cordova (2007) 40 Cal.4th 412, 427.) “ ‘[A]n agency may abuse its
discretion under CEQA either by failing to proceed in the manner CEQA
provides or by reaching factual conclusions unsupported by substantial
evidence.’ ” (Banning Ranch Conservancy v. City of Newport Beach (2017) 2
Cal.5th 918, 935 (Banning).)
“ ‘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

7
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,
supra, 6 Cal.5th at p. 512.) “The ultimate inquiry, as case law and the CEQA
guidelines make clear, is 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.’ ” (Id. at p. 516.) This
inquiry is generally a mixed question of law and fact subject to de novo
review, but to the extent factual questions predominate, a substantial
evidence review applies. (Ibid.)
II. The superior court erred in finding Save the Hill failed to
exhaust its administrative remedies before challenging the
no-project alternative analysis.
The superior court rejected Save the Hill’s challenge to the adequacy of
the no-project alternative analysis on the procedural ground of failure to
exhaust administrative remedies. Specifically, the court found that while
Save the Hill representatives “express[ed] their desires that the site be
preserved as open space,” they did not mention the environmental documents
or express concern that the City insufficiently studied project alternatives.
As discussed post, CEQA does not require public interest groups such as Save
the Hill, which often are unrepresented by counsel at administrative
hearings, to do more than fairly apprise the agency of their complaints in
order to preserve them for appeal.
When preparing an EIR, CEQA “ ‘requires the public agency to consider
feasible alternatives to the project which would lessen any significant adverse
environmental impact. (§§ 21002, 21081; [citation].) One alternative is “no
project.” (See Guidelines, § 15126, subd. (d)(2) [“no project” alternative to be
considered along with proposed project’s environmental impact]; [citation].)’

8
[Citation.]” (Planning & Conservation League v. Department of Water
Resources (2000) 83 Cal.App.4th 892, 911 (Planning & Conservation League).)
Here, Save the Hill contends the RFEIR’s evaluation of the no-project
alternative was deficient. The superior court agreed but, nonetheless, found
Save the Hill forfeited the right to challenge the no-project alternative
evaluation by failing to raise a proper objection during the administrative
process. We review the court’s finding de novo. (Clews Land &
Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 185.) The
following rules apply.
“ ‘In order to attack a decision that is subject to CEQA, the alleged
grounds for noncompliance must have been presented to the public agency,
and the person attacking the decision must have raised some objection during
the administrative proceedings. (§ 21177, subds. (a), (b).)’ [Citation.]
Although an issue must first have been raised during the administrative
process to be preserved for judicial review, it may be argued in court by a
different person. [Citation.]” (California Clean Energy, supra, 225
Cal.App.4th at p. 191.) “ ‘[T]he objections must be sufficiently specific so that
the agency has the opportunity to evaluate and respond to them.’ [Citation.]
This requirement is known as the exhaustion doctrine. [Citation.] The
rationale behind this rule is that the public agency should have the
opportunity to receive and respond to articulated factual issues and legal
theories before its actions are subjected to judicial review. [Citation.]”
(Porterville Citizens for Responsible Hillside Development v. City of Porterville
(2007) 157 Cal.App.4th 885, 909–910 (Porterville Citizens).)
Generally speaking, “ ‘ “ ‘bland and general references to environmental
matters’ ” ’ ” or “ ‘ “ ‘isolated and unelaborated’ ” ’ ” comments do not satisfy
the exhaustion requirement; rather, the “ ‘ “ ‘exact issue’ ” ’ ” must have been

9
presented to the agency. (E.g., North Coast Rivers Alliance v. Marin
Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623, 631
[plaintiff failed to exhaust administrative remedies where its letters during
the administrative process failed to apprise the agency of any specific
inconsistencies with the plan’s policies or programs]; South of Market
Community Action Network v. City and County of San Francisco (2019) 33
Cal.App.5th 321, 347 (South of Market Community Action) [plaintiffs’
remarks during the public comment period that reflected “general concerns
about the amount of wind generated by the 5M Project, ‘wind tunnel’ effects,
and requests for mitigation measures” were “insufficient to raise the specific
issues [they] assert[ed] on appeal”].) At the same time, courts have
acknowledged less specificity is required to preserve an issue for appeal in an
administrative proceeding than in a court proceeding because parties are not
generally represented by counsel before administrative bodies: “ ‘ “ ‘To hold
such parties to knowledge of the technical rules of evidence and to the
penalty of waiver for failure to make a timely and specific objection would be
unfair to them.’ ” ’ ” (Santa Clarita Organization for Planning the
Environment v. City of Santa Clarita (2011) 197 Cal.App.4th 1042, 1051; see
Planning & Conservation League v. Castaic Lake Water Agency (2009) 180
Cal.App.4th 210, 251 (Castaic Lake) [to satisfy exhaustion doctrine,
petitioner’s objections need only “ ‘fairly apprise[]’ ” the agency of the EIR’s
purported defect].)
We conclude on this record Save the Hill’s objections during the
administrative process met this standard of fairly apprising the City of the
RFEIR’s failure to adequately flesh out the feasibility of not going forward
with the Project. For example, during the public comment period, Carolyn
Morgan wrote the City to express concern for “the destruction of habitat

10
when the hill is bulldozed to make suitable building pads” and to ask whether
Lafferty owned other land in the City “more suitable for building.” Morgan
then queried whether “[Lafferty] could sell the development credits to
another builder in a more suitable area” so that “the habitat would be saved
of [sic] forever.” In RFEIR comment H-2, the City responded by specifically
directing Morgan to the no-project/no-development alternative evaluation,
which indicated the Project Site is zoned for residential development and that
the Project’s habitat-loss impact would be mitigated to insignificant levels.
In addition, during the April 22, 2019 city council meeting at which the
RFEIR was presented for certification, several Save the Hill representatives
objected to the Project and voiced support for the alternative of preserving
the Project Site as open space in perpetuity. For example, Michelle Mitchell
asked, “ ‘Is it possible that during [a future] General Plan reevaluation the
City can take the time to look once again to rezoning this property so that it
might remain open space? Given the City’s history of preserving open space
and hillsides, the City’s current General Plan, and the City’s work with the
Altamont Landfill Open Space committee on [a] recommended list of priority
areas for future acquisition and [its work with] eastern Alameda County, I’d
like to request that the City consider working with other local agencies [and]
the Save the Hill Group to secure funding from the Altamont Landfill Open
Space Committee and partnering with [a] local park district or districts to
preserve this area as open space.”
Another Save the Hill representative, Michaela Morrow, then pointed
to the RFEIR’s report that roughly 32 acres of sensitive habitat would be
permanently destroyed and asked the city council, instead, to protect the land
as open space in accordance with the general plan. Save the Hill
representative Bianca Covarelli, in turn, told the city council that funds were

11
available for buying and preserving Garaventa Hills as open space and
“ ‘we’re working on collaborating with finding a buyer for this unique
beautiful space to maintain open space.’ ” Covarelli also reiterated, “This is
an environmentally and ecologically sensitive, very unique, hill that should
be honored and left intact as pristine, maintained open space. . . . Our goal
from Save the Hill Group is to maintain this unique open space . . . .”
In response to these comments, several city council members raised
questions to the planning commission regarding the possibility of preserving
the Project Site as open space. Councilmember Bob Woerner acknowledged
the community’s desire not to have the Project and asked whether the City
could buy the land itself and just “ ‘ “make this all go away . . . .” ’ ” In
response, Assistant City Attorney Catrina Fobian advised him that zoning
rules could not be changed at that point and that he should limit his
“ ‘evaluat[ion] [to] the project that is set before you—not look at the
possibility of what the City could do with the property as we’re currently not
under contract to purchase that property; Lafferty Communities is under
contract to purchase that property. So that would be a separate course of
action, apart from your determination as to what to do with this proposal
before you this evening.’ ”
In the same vein, Mayor John Marchand asked whether anyone had
made an offer to buy Garaventa Hill and whether there were funds available,
specifically “the Altamont Open Space funds,” to conserve the Project Site.
Planning Manager Steve Stewart responded that these funds were subject to
“specific requirements” and were “tied to sites with significant native . . .
biological diversity and also for non-motorized uses.” Mayor Marchand also
asked, “ ‘If we did change the zoning to be permanent open space and decided
that there could be no development on this property, that constitutes a

12
taking?’ ” City Attorney Jason Alcala responded, “ ‘Yes; if the Council were to
take that action, you would be faced with the likelihood of a takings
lawsuit.’ ”3 Taking this counsel to heart, Councilmember Woerner lamented,
before voting to certify the RFEIR, “There is no way under the rules that we
have to work under to get to zero. . . . This is [the] best we can do. We don’t
have a lot of latitude . . . .”
These discussions show the city council was very much focused, at Save
the Hill’s prompting, on the feasibility of a no-project alternative. While the
superior court discounted them for not specifically referring to the RFEIR’s
project alternatives evaluation, we conclude they sufficed to fairly apprise the
City of its position. (See Castaic Lake, supra, 180 Cal.App.4th at p. 251; Save
Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th
1745, 1750 [“SORE’s objections to the Project, while not identifying the
precise legal inadequacy upon which the trial court’s ruling ultimately rested,
fairly apprised [the agency] that SORE believed the environmental impacts of
developing the Project . . . would be deleterious to the surrounding
community”].)
Moreover, “the doctrine of exhaustion of administrative remedies has
not hardened into inflexible dogma. [Citation.] It contains its own
exceptions, as when the subject matter of the controversy lies outside the
administrative agency’s jurisdiction [citation], when pursuit of an
administrative remedy would result in irreparable harm [citations], when the
administrative agency cannot grant an adequate remedy [citations], and
when the aggrieved party can positively state what the administrative

As discussed post (pp. 19–21), the representations by the City’s
3

attorneys that it would be illegal for the City to attempt to rezone and
purchase the Project Site for conservation were not included, much less
explained, in the RFEIR.

13
agency’s decision in his particular case would be. ([Citation.] See also
Exhaustion of Administrative Remedies in California, 56 Cal.L.Rev. 1061,
1068–1081.)” (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830,
834.)
The last mentioned exception applies here. The record is replete with
incidences of Save the Hill representatives urging councilmembers to
consider the possibility of obtaining funding to purchase and conserve the
Project Site. While Save the Hill did not frame its urging in the language of
the RFEIR’s no-project alternative, the evidence is overwhelming that, had it
done so, the result would have been the same: The City would have rejected
the group’s proposal and certified the RFEIR. As described, when
councilmembers broached the possibility of obtaining such funding to
purchase and conserve Garaventa Hills, they were advised by staff and
attorneys that it was too late and would expose the City to liability under the
takings clause. They were also instructed to limit their focus to the Project in
front of them—even though CEQA required them to focus on both the Project
and feasible alternatives, including the no-project alternative.
On this record, we may conclude the City had no intention to consider
the alternative of not having the Project go forward. (See Ogo Associates v.
City of Torrance, supra, 37 Cal.App.3d at p. 834.) Accordingly, we decline to
apply the exhaustion of remedies doctrine as a bar to Save the Hill’s no-
project challenge.
III. The no-project alternative analysis is inadequate.
We thus turn to the merits of Save the Hill’s claim that the RFEIR’s no-
project alternative discussion was inadequate, as it failed to disclose and
analyze information regarding the availability of funding sources that could

14
have been used to purchase and permanently conserve the Project Site. The
following standards apply.
“CEQA requires that the no project alternative discussed in an EIR
address ‘existing 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.’ (Guidelines, former § 15126, subd. (d)(4), now § 15126.6, subd.
(e)(2).) The existing conditions, supplemented by a reasonable forecast, are
characterized as the no project alternative. The description must be
straightforward and intelligible, assisting the decision maker and the public
in ascertaining the environmental consequences of doing nothing.”
(Planning & Conservation League, supra, 83 Cal.App.4th at p. 911; see Center
for Biological Diversity v. Department of Fish & Wildlife (2015) 234
Cal.App.4th 214, 253.) Moreover, the discussion “must contain sufficient
detail to help ensure the integrity of the process of decisionmaking by
precluding stubborn problems or serious criticism from being swept under the
rug. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn.
(1986) 42 Cal.3d 929, 935 [citations]; [citation].) It must reflect the analytic
route the agency traveled from evidence to action. [Citation.] An EIR which
does not produce adequate information regarding alternatives cannot achieve
the dual purpose served by the EIR, which is to enable the reviewing agency
to make an informed decision and to make the decisionmaker’s reasoning
accessible to the public, thereby protecting informed self-government.
[Citation.]” (Kings County Farm Bureau v. City of Hanford (1990) 221
Cal.App.3d 692, 733; see South of Market Community Action, supra, 33
Cal.App.5th at p. 331 [“ ‘overriding issue’ ” is whether the agency
“ ‘ “reasonably and in good faith” ’ ” discussed the project in sufficient detail to

15
allow the public to discern from the EIR the agency’s analytic route from
evidence to action].)
Thus, to prove prejudicial error, the appellant must demonstrate “ ‘the
failure to include relevant information preclude[d] informed decisionmaking
and informed public participation, thereby thwarting the statutory goals of
the EIR process.’ [Citation.]” (Neighbors for Smart Rail v. Exposition Metro
Line Construction Authority (2013) 57 Cal.4th 439, 463.)
Here, the RFEIR identifies “No Project, No Development” as an
alternative that is environmentally superior to the Project itself because it
assumes the proposed Project is not approved and the site would remain in
an undeveloped state, with no development of roadways or residences. Yet
the RFEIR ultimately rejects the no-project alternative because: (1) it would
not meet the Project’s objectives of completing implementation of the
Maralisa Planned Development,4 contributing to housing availability and
providing housing near employment centers; and (2) it is “not necessarily
feasible to assume the site would remain undeveloped in the long term”
because the Project Site is zoned for residential development and there is no
current proposal for the City or other agency to purchase or otherwise
preserve it.
As Save the Hill notes, there is no mention in this discussion about the
existence and feasibility of using available funding sources to purchase the
Project Site and set aside Garaventa Hills for conservation rather than
development. Yet respondents concede the Project Site is eligible for

4 In the 1990’s, development of Garaventa Hills was proposed as part of
the Marlisa Planned Development, a project to construct hundreds of
residences and a school north and south of Altamont Creek. However,
Garaventa Hills was later removed from the Maralisa Planned Development
due to environmental and hydrological concerns.

16
conservation funding under two settlement agreements to which the City is a
party: the Dougherty Valley Settlement Agreement (DVSA) and the
Altamont Landfill Settlement Agreement (ALSA). The DVSA, deployed to
mitigate environmental impacts from a large housing project, required the
developer to pay several million dollars in fees into a settlement fund to be
used by the City for acquisitions, including permanent trails, open space, or
agricultural preservation easements, in two areas: (1) north of Interstate 580
and east of Collier Canyon Road in Alameda County (which includes the
Project Site); and (2) the Tassajara Valley area of Contra Costa County.
The DVSA also mandates with respect to open space acquisitions that
priority be given to “purchases in areas containing unique vegetation and/or
endangered species habitat.” Respondents do not dispute Garaventa Hills
falls within both the geographic scope of the DVSA, as it sits squarely within
the area north of Interstate 580 and east of Collier Canyon Road in Alameda
County, and within the environmental scope of the DVSA, as the site
contains both unique vegetation and endangered species habitat. The City
itself describes the Project Site as “the last undeveloped area within the City
limits in the vicinity,” with “no additional development” assumed in its
immediate vicinity.
The ALSA, in turn, was executed to address environmental harm from
the expansion of the Altamont Landfill. The record reflects that as of March
2018, ALSA’s open space fund contained approximately $11.2 million
earmarked for land acquisitions in designated areas that include the Project
Site. To that end, the Altamont Landfill Open Space Committee (Open Space
Committee) adopted and the city council approved a list of priority areas for
future acquisitions with ALSA funds that include the Springtown Alkali Sink

17
area, which arguably covers Garaventa Hills, upstream and hydrologically
connected to the Sink.
And similar to the DVSA, the ALSA specifies that “first priority” should
be given to “acquisition of property having significant value for preservation
of native biological diversity and/or wildlife habitat” and that “second
priority” should be given to “acquisition of property having significant value
for visual character and/or non-motorized recreation.” Respondents do not
dispute Garaventa Hills meets both of these standards. However, they argue
that conservation of Garaventa Hills would not be a reasonably foreseeable
consequence of implementing the no-project alternative because the Project
Site is already zoned for residential development and there is no known
willing buyer.
We find weaknesses with these arguments. First, as the superior court
noted when finding the RFEIR’s no-project alternative evaluation deficient,
the Project Site’s zoning designation is not unalterable. Even our Supreme
Court has recognized “the use of zoning to facilitate the availability of private
recreational facilities to the residents of [a city] is within the scope of the
city’s police power.” (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854,
881–882.) In fact, the record reflects that, before approving the Project at
hand, the City recognized its power to change the zoning designation of a 65-
plus-acre parcel of environmentally sensitive property in the vicinity of
Garaventa Hills that was privately owned by the Anne and Jason Farber
Foundation (Farber Property). Similar to the Project Site, the Farber
Property was home to several special-status wildlife species, including vernal
pool fairy shrimp, California tiger salamander, California red-legged frog and
San Joaquin kit fox, that would have been impacted by development. In

18
2011, using DVSA/ALSA funds, the City purchased the Farber Property in
order to permanently preserve it as open space.
In deciding to acquire the Farber Property, the City applied criteria
developed by the Open Space Committee that prioritized preservation of
native biological diversity and/or wildlife habitat (primary) and significant
value for visual character and/or nonmotorized recreation (secondary). The
Open Space Committee’s criteria also included the proposed acquisition’s
strategic value in land protection and the existence of additional funding
sources and willing sellers. As to the Farber property’s strategic value, the
City’s staff concluded in recommending acquisition: “The Zoning Designation
is Planned Development. Over the last decade and a half, the property has
been under options with home-builders. The most recent development
proposal for the property is for 145 residential units clustered to avoid the
vernal pools and seasonal wetlands. The District’s acquisition would end
development speculation on the property and preserve the property in
perpetuity.” (Italics added.)
We agree with Save the Hill that the City’s acquisition of the Farber
Property is noteworthy here, as it illuminates the lack of relevant
information in the RFEIR’s no-project alternative evaluation regarding the
feasibility of acquiring Garaventa Hills to conserve it as open space.
Respondents’ arguments—that there is no evidence Garaventa Hills had a
willing seller (like the Farber family) or had been targeted for acquisition
with DVSA or ALSA funds—further illuminate this informational void. In
this case, the City could not apply the criteria that it applied when acquiring
the Farber Property because the relevant information was not in the RFEIR.
The RFEIR’s deficiencies on this issue were laid bare at the April 22,
2019 city council meeting when several councilmembers asked for the very

19
information about the feasibility of acquiring the Project Site for open space
(including funding sources) that Save the Hill complains was omitted. (See
ante, pp. 11–14.) Councilmembers should have been directed to specific
information in the RFEIR, but there was none. Instead, they received
unsupported answers and warnings from the City’s attorneys that any
attempt to acquire the Project Site could expose the City to liability under the
takings clause. (See ante, pp. 11–14.)
This begs the question: If it is illegal or otherwise impossible for the
City to acquire and conserve the Project Site, why does the RFEIR’s no-
project alternative analysis fail to say so?5 As the California Supreme Court
warns, “ ‘[f]ailure to disclose information called for by CEQA may be
prejudicial “regardless of whether a different outcome would have resulted if
the public agency had complied” with the law (§ 21005, subd. (a)).’
[Citation.]” (Banning, supra, 2 Cal.5th at p. 942; see Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d
376, 405 (Laurel Heights) [“An EIR must include detail sufficient to enable
those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project”].)

5 The City’s potential for liability under the takings clause is an issue
beyond the scope of this appeal. We note, however, the issue is not as
straightforward as respondents suggest. For one, the “general purpose of
zoning and planning is to regulate the use of land to promote the public
welfare, a power the courts have construed very broadly. Indeed, one of the
traditional uses of the police power lies in providing citizens adequate
recreational opportunities. (See, e.g., Associated Home Builders[, etc., Inc. v.
City of Walnut Creek (1971)] 4 Cal.3d 633, 638 [‘The elimination of open space
in California is a melancholy aspect of the unprecedented population increase
which has characterized our state in the last few decades. . . .
[G]overnmental entities have the responsibility to provide park and
recreation land to accommodate this human expansion . . . .’].)” (Ehrlich v.
City of Culver City, supra, 12 Cal.4th at pp. 881–882.)

20
 Nor does the City’s potential exposure to liability excuse its duty to
fulfill CEQA’s informational mandate. (Planning & Conservation League,
supra, 83 Cal.App.4th at p. 913 [“the threat of litigation cannot be allowed to
derail environmental review”].) Lafferty has never had the absolute right as
owner to develop Garaventa Hills. Rather, Lafferty’s plan has always been
contingent on obtaining certification of a legally adequate EIR. (See Laurel
Heights, supra, 47 Cal.3d at p. 425 [refusing to “countenance any attempt to
reject an alternative on the ground that the Laurel Heights site has already
been purchased or that activities there have already commenced,” as it
“would be untenable for [defendants] to rely on the result of their own
noncompliance as a basis for determining their future action”].) As the
Guidelines make clear, an EIR “shall focus on alternatives to the project or
its location which are capable of avoiding or substantially lessening any
significant effects of the project, even if these alternatives would impede to
some degree the attainment of the project objectives, or would be more costly.”
(Guidelines, § 15126.6, subd. (b), italics added.)
Finally, we acknowledge many unknown variables exist regarding the
feasibility of acquiring Garaventa Hills. However, “[d]rafting an EIR . . .
involves some degree of forecasting. While foreseeing the unforeseeable is
not possible, an agency [nonetheless] must use its best efforts to find out and
disclose all that it reasonably can.” (Guidelines, § 15144.) The fact that two
funding sources exist for the precise purpose of enabling the City to acquire
environmentally sensitive areas such as Garaventa Hills for conservation is
just the sort of information CEQA intended to provide those charged with
making important, often irreversible, environmental choices on the public’s
behalf.

21
 At the end of the day, “CEQA compels process. It is a meticulous
process designed to ensure that the environment is protected. Because the
EIR is the heart and soul of CEQA, we must assure that [the] EIR facilitated
the environmental review process as envisioned by CEQA.” (Planning &
Conservation League, supra, 83 Cal.App.4th at p. 911.) Here, this process
failed. Lacking adequate information regarding the no-project alternative,
the city council could not make an informed, reasoned decision on whether
this Project should go forward. Accordingly, its decisions to certify the
RFEIR and approve the Project must be set aside and a new EIR prepared.
(See Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236;
Banning, supra, 2 Cal.5th at p. 942 [EIR’s omission of relevant information
that resulted in inadequate evaluation of project alternatives constituted
prejudicial error]; see also Kings County, supra, 221 Cal.App.3d at p. 735
[EIR’s omission of data comparing natural gas to coal violated CEQA’s
informational mandate and constituted prejudicial error]; King and Gardiner
Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 869 (King and
Gardiner) [EIR’s omission of sufficient information regarding mitigation for
significant water supply impacts “constitutes a prejudicial violation of CEQA
by itself”].)
IV. The RFEIR’s analysis and mitigation with respect to vernal pool
fairy shrimp and the Springtown Alkali Sink are adequate.
A few issues remain. In its opening brief, Save the Hill argued the City
violated CEQA by failing to analyze the Project’s hydrological impacts to the
downstream Springtown Alkali Sink and by failing to mitigate the loss of
critical habitat for the threatened vernal pool fairy shrimp (VPFS). After
respondents challenged these arguments in its brief, Save the Hill omitted
them from the reply brief, thereby abandoning them. (The Police Retirement

22
System of St. Louis v. Page (2018) 22 Cal.App.5th 336, 346, fn. 3.) We
nonetheless very briefly discuss them here.6
“Under CEQA, ‘If the agency decides to approve a project despite its
significant adverse impacts, the agency must issue findings which specifically
state how the agency has responded to the significant impacts identified in
the EIR.’ ([Citation]; see CEQA, § 21081; CEQA Guidelines, § 15091.) One
such finding is that ‘[c]hanges or alterations have been required in, or
incorporated into, the project which mitigate or avoid the significant effects
on the environment.’ (CEQA, § 21081, subd. (a)(1); CEQA Guidelines,
§ 15091, subd. (a)(1).) Any such finding must be supported by substantial
evidence in the record. (CEQA Guidelines, § 15091, subd. (b).)” (California
Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603,
625 (California Native Plant).) “[W]here substantial evidence supports the
approving agency’s conclusion that mitigation measures will be effective,
courts will uphold such measures against attacks based on their alleged
inadequacy. (Laurel Heights, supra, 47 Cal.3d at p. 407.)” (Sacramento Old
City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027 (Sacramento Old
City).)

6 Save the Hill also abandoned a third argument—that the RFEIR
failed to address impacts from the Project’s proposed construction of a
pedestrian bridge—after respondents pointed out two factual flaws. First,
Save the Hill mistakenly claimed the FEIR failed to address the need to
realign Altamont Creek to accommodate the bridge when in fact no
realignment was needed. Second, Save the Hill claimed a mitigation
measure included in the DEIR, Traf-3, was erroneously omitted from the
FEIR. In fact this measure was appropriately omitted because it related to
vehicle traffic while the bridge proposed in the FEIR was limited to
pedestrian traffic.

23
 A. VPFS.
Garaventa Hills is designated as a special habitat for VPFS. The
RFEIR identifies as a potentially significant impact of the Project the
permanent loss of approximately 0.004 acre of seasonal wetland that could be
occupied by VPFS. As mitigation, the RFEIR requires Lafferty to
(1) complete surveys of the area using a protocol acceptable to the USFWS to
determine whether VPFS are present and, if their presence is detected,
(2) obtain authorization from the USFWS for the taking of VPFS before
filling or disturbing the seasonal wetland and (3) provide compensatory
habitat for lost habitat at a mitigation ratio of 9:1, 10:1 or 11:1 depending on
the location of the mitigation site, as recommended in the East Alameda
County Conservation Strategy.
Save the Hill condemns these mitigation measures as inadequate
because they are conditional, requiring implementation only if VPFS are
actually found on the Project Site. However, as respondents note, the City
assumed for purposes of the RFEIR that VPFS are present, even though they
had not been detected, when adopting these measures. Moreover, CEQA
permits an agency to defer to a future date the adoption of more specific
mitigation measures: “[F]or kinds of impacts for which mitigation is known
to be feasible, but where practical considerations prohibit devising such
measures early in the planning process (e.g., at the general plan amendment
or rezone stage), the agency can commit itself to eventually devising
measures that will satisfy specific performance criteria articulated at the
time of project approval. Where future action to carry a project forward is
contingent on devising means to satisfy such criteria, the agency should be
able to rely on its commitment as evidence that significant impacts will in
fact be mitigated.” (Sacramento Old City, supra, 229 Cal.App.3d at pp. 1028–

24
1029; see California Native Plant, supra, 172 Cal.App.4th at p. 621 [“the
details of exactly how mitigation will be achieved under the identified
measures can be deferred pending completion of a future study”].) The
RFEIR meets this standard by adopting specific performance criteria for
Lafferty to follow in case VPFS are found at the Project Site.
Thus, because substantial evidence supports the City’s finding that the
VPFS mitigation measures are adequate, we affirm it. (Sacramento Old City,
supra, 229 Cal.App.3d at p. 1027; California Native Plant, supra, 172
Cal.App.4th at p. 625.)
B. Springtown Alkali Sink.
Save the Hill also contends the RFEIR failed to analyze foreseeable
significant hydrological impacts to the Springtown Alkali Sink, an
environmentally sensitive land form downstream from the Project Site. (See
Guidelines, § 15125, subd. (c) [“EIR must demonstrate that the significant
environmental impacts of the proposed project were adequately investigated
and discussed”].) Save the Hill relies on the EIR for the Maralisa Planned
Development, which acknowledged: “Water quality degradation from project
development area has the potential to adversely affect the nearby
downstream Springtown alkali sink area, and to contribute to water quality
problems of Alameda Creek and ultimately San Francisco Bay.” Based on
this acknowledgment, Save the Hill claims it was arbitrary and capricious for
the City to omit discussion of these impacts in the RFEIR.
Respondents have a twofold response. First, they note Save the Hill
does not dispute the RFEIR’s finding, based on an expert’s hydrological
study, that the Project will not cause significant hydrological impacts to the
Garaventa Wetlands Preserve, an area adjacent to the Project Site.
A fortiori, respondents continue, there must be no significant impacts to the

25
more distant Springtown Alkali Sink. Second, respondents insist the
Maralisa Planned Development’s EIR is irrelevant here because that project
was significantly larger, involving 230 acres and several hundred residential
units. This Project involves only 31.7 acres and 44 residential units.
We agree with these points, which Save the Hill does not dispute.
Accordingly, because the hydrological expert’s report constitutes substantial
evidence supporting the City’s finding of no significant hydrological impacts
as a result of the Project, we uphold the RFEIR on this issue. (See The Police
Retirement System of St. Louis v. Page, supra, 22 Cal.App.5th at p. 346, fn. 3;
Laurel Heights, supra, 47 Cal.3d at p. 407.)
V. The identified compensatory mitigation measure for permanent
loss of sensitive habitat is adequate.
The RFEIR recognizes the permanent loss of up to 31.78 acres of
habitat that supports the California tiger salamander, California red-legged
frog, San Joaquin kit fox, California burrowing owl, and potentially the
American badger. The RFEIR therefore requires Lafferty to provide offsite
compensatory mitigation at a 2.5:1 to 3:1 ratio for this permanent habitat
loss for each of these species, which can be on the same site if the site has
sufficient space. Lafferty proposed the Bluebell site for this compensatory
mitigation, an 85-acre parcel in the Springtown Alkali Sink area that
contains part of Altamont Creek, sensitive soil, vernal pools, and numerous
plant and animal species.
Save the Hill contends the Bluebell site is inadequate for mitigation
because it is already protected open space under local law and, thus, cannot
make up for the lost habitat. The local law to which the group refers is the
City’s general plan, goal objective OSC-1.1, policy P6: “The City shall
preserve and maintain . . . the Springtown Alkali Sink area as [an] important

26
wildlife and plant habitat[] through preservation of open space in and around
these areas.”
Respondents counter the general plan provision is merely aspirational.
It does not accomplish what the RFEIR’s measure does—creation of a
perpetual legal restraint on development at the Bluebell site supported by
funding for both upkeep and enforcement. Respondents further note the City
retains the right to compel Lafferty to protect a different mitigation site if the
Bluebell site proves inadequate.
We agree with respondents. Undisputedly, the Bluebell site is suitable
for mitigation, as it contains sensitive habitat that houses a variety of plant
and animal species. Moreover, the RFEIR requires this site, which is
currently privately owned, to be placed “under [a] permanent easement with
an endowment for restoration and management in perpetuity.” The general
plan requires nothing of the sort. And, if the Bluebell site proves inadequate
for the mitigation task with respect to any of the identified animal species,
the RFEIR authorizes the City to compel Lafferty to find and protect an
alternative site. (See Preserve Wild Santee v. City of Santee (2012) 210
Cal.App.4th 260, 279 [“Generally, an agency does not need to identify the
exact location of offsite mitigation property for an EIR to comply with
CEQA”]; Guidelines, § 15126.4, subd. (a)(1)(B) [“specific details of a
mitigation measure . . . 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”].)

27
 Finally, we turn to Save the Hill’s argument that the Bluebell site’s
protection under a conservation easement would not result in the provision of
any new resources to offset or compensate for the habitat permanently lost to
the Project. “It would simply ensure the Bluebell Site would not also be lost.”
Save the Hill relies on King and Gardiner, supra, which rejected an EIR’s
plan to mitigate the loss of agricultural land to oil and gas activity by
implementing agricultural conservation easements. The appellate court
concluded “implementation of agricultural conservation easements for the
289 acres of agricultural land estimated to be converted each year would not
change the net effect . . . [that] there would be 289 fewer acres of agricultural
land in Kern County.” (45 Cal.App.5th at pp. 875–876.)
We do not find King and Gardiner, supra, helpful in this case. First, it
involved the proposed loss of 7,450 acres of land to an oil and gas drilling
project (45 Cal.App.4th at pp. 871, 875–876), as compared to the proposed
loss in this case of about 32 acres. More importantly, CEQA does not require
mitigation measures that completely eliminate the environmental impacts of
a project. Rather, CEQA permits mitigation measures that would
substantially lessen the significant environmental effects of the project.
(§ 21002.) The Guidelines, in turn, provide that mitigation may include
“[c]ompensating for the impact by replacing or providing substitute resources
or environments . . . .” (Guidelines, § 15370, subd. (e), italics added.)
Consistent with this guideline, as King and Gardiner appears to recognize
(45 Cal.App.5th at p. 875), conservation easements are an accepted part of
“ ‘agencies’ toolboxes as available mitigation’ ” for environmental impacts.
(See Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, 238–
239 [“[agricultural conservation easements] may appropriately mitigate the
direct loss of farmland when a project converts agricultural land to a

28
nonagricultural use, even though an ACE [agricultural conservation
easement] does not replace the onsite resources”]; see Friends of Kings River
v. County of Fresno (2014) 232 Cal.App.4th 105, 124–126 [discussing case law
recognizing that offsite preservation of habitats for endangered species,
which is functionally similar to an agricultural conservation easement, is an
accepted means of mitigating impacts on biological resources].)
Thus, for the reasons stated, we conclude substantial evidence supports
the City’s conclusion that preservation of the Bluebell site is adequate
compensatory mitigation for the permanent loss of 31.78 acres of habitat
under the Project. (See Sierra Club, supra, 6 Cal.5th at p. 512.)
VI. Save the Hill lacks standing to challenge the City’s compliance
with the terms of the DVSA or ALSA.
Last, Save the Hill contends the City violated CEQA by failing to
pursue the possibility of preserving Garaventa Hills in order to meet its
obligations under the DVSA and ALSA to acquire environmentally important
properties as compensatory mitigation to offset the environmental harms of
other City projects. Save the Hill failed to raise this issue at any point prior
to this appeal, thereby forfeiting review of it. (Sea & Sage Audubon
Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) Moreover, it in any
event lacks merit. Save the Hill was not a party to the DVSA or ALSA and
therefore lacks standing to enforce any obligation arising from those
agreements against the City. (Republic Indemnity Co. v. Schofield (1996) 47
Cal.App.4th 220, 227.)
DISPOSITION
The judgment is reversed. The matter is remanded to the superior
court with instructions to: (1) vacate its order denying Save the Hill’s
challenge by way of petition for writ of mandate to the RFEIR’s no-project
alternative analysis; (2) enter a modified order and a modified judgment

29
consistent with our opinion that Save the Hill’s challenge to the no-project
alternative analysis was both preserved and meritorious; and (3) issue a
peremptory writ of mandate directing the City to set aside the certification of
the RFEIR and approval of the Project. Save the Hill is entitled to recover
costs on appeal.

_________________________
Jackson, P. J.

WE CONCUR:

_________________________
Simons, J.

_________________________
Needham, J.

A161573/Save the Hill Group v. City of Livermore

30
A161573/Save the Hill Group v. City of Livermore

Trial Court: Superior Court Alameda County

Trial Judge: Frank Roesch

Counsel: Greenfire Law and Jessica L. Blome, for Plaintiff and
Appellant.

Jason Rudy Alcala, City Attorney, Kelly Joanne Trujillo,
Assistant City Attorney; Remy Moose Manley,
Sabrina V. Teller and Elizabeth R. Pollock for
Defendant and Respondent.

Buchalter, Douglas C. Straus and Alicia Guerra, for Real
Party in Interest and Respondent.

31