Scheiber Ranch Properties v. City of Lincoln CA3

Filed 11/2/22 Scheiber Ranch Properties v. City of Lincoln CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

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

SCHEIBER RANCH PROPERTIES, LP, et al.,

Plaintiffs and Appellants, C092083

v. (Super. Ct. No. SCV0040629)

CITY OF LINCOLN,

Defendant and Respondent;

RICHLAND DEVELOPERS, INC.,

Real Party in Interest and Appellant.

Scheiber Ranch Properties, LP and Albert Scheiber (collectively Scheiber Ranch)
filed a petition for writ of mandate challenging the decision of the City of Lincoln
(Lincoln) to certify an environmental impact report (EIR) under the California
Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) and to issue
land use approvals for the Village 5 project by Richland Developers, Inc. (Richland).1
Scheiber Ranch subsequently amended its writ petition to add a complaint for deprivation
of substantive due process and uncompensated taking against Lincoln.

1 Undesignated statutory references are to the Public Resources Code.

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 The trial court granted the writ petition as to the EIR discussion for the Village 5
Specific Plan (the Specific Plan) relating to transit impacts and mitigation measures that
relied on compliance with the Placer County Conservation Program (the Conservation
Program). It denied the writ petition as to the remainder of Scheiber Ranch’s claims.
The trial court sustained without leave to amend a demurrer to the causes of action for
deprivation of substantive due process and uncompensated taking.
Scheiber Ranch now contends (1) the EIR fails to adequately disclose agricultural
resource impacts and fails to mitigate to the extent feasible, referencing mitigation
measure 3.2-1, (2) the EIR does not adequately inform on water supply, (3) the EIR fails
to provide adequate information about its fair-share mitigation to determine effectiveness,
(4) the EIR impermissibly defers analysis and mitigation regarding impacts to biological
resources, i.e., mitigation measure 3.4-2(b) is inadequate, (5) the trial court erred in
ordering only partial decertification of the EIR and declining to vacate the project
pending Lincoln’s additional CEQA review, (6) Scheiber Ranch asserted a cognizable
substantive due process claim, and (7) the trial court erred in sustaining without leave to
amend the demurrer to the uncompensated taking cause of action.
In its cross-appeal, Richland contends (8) the Scheiber Ranch challenge to
mitigation measure 3.2-1 is moot, (9) the trial court erred in concluding that certain
mitigation measures were improperly deferred, and (10) the trial court erred in ruling that
the EIR’s analysis of transit impacts violated CEQA.
We conclude Scheiber Ranch fails to demonstrate that the EIR’s discussion of
impacts on agricultural resources and mitigation, water supply, or fair-share mitigation is
deficient. However, mitigation measure 3.4-2(b) improperly deferred the formulation of
mitigation measures for potentially significant adverse impacts on the habitat of special-
status species.
We further conclude that a trial court may order a partial decertification of an EIR
and suspend only those parts of the project that do not comply with CEQA upon making

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requisite severance findings; that Scheiber Ranch has not established error in the trial
court’s demurrer rulings; and that the approval of the final Conservation Program did not
moot Scheiber Ranch’s claims.
But we agree with the trial court that the EIR’s discussion of mitigation measures
requiring compliance with the Conservation Program is inadequate. And Richland fails
to demonstrate that the EIR’s discussion of transit impacts complied with CEQA.
We will reverse the judgment with regard to mitigation measure 3.4-2(b) and
direct the trial court to enter a judgment and issue a writ of mandate consistent with this
opinion. We will affirm the judgment in all other respects.
BACKGROUND
The Specific Plan contemplated the annexation of approximately 4,787 acres into
Lincoln and the development of that property to create approximately 8,200 residential
dwelling units, 4.6 million square feet of commercial space, and public/semipublic
facilities, including a high school, a junior high school, three elementary schools, parks,
and open space. It was anticipated that development would occur over a 15- to 25-year
period. The Specific Plan area would be developed separately and at different times
because it was owned by different landowners. Richland owned and/or controlled about
1,541 acres of the Specific Plan area. The EIR provided a project-level analysis for Area
A of the Specific Plan area and a program-level analysis for Areas B through J.
Scheiber Ranch Properties, LP owned and operated agricultural land within the
Specific Plan area. Albert Scheiber was a general partner of Scheiber Ranch Properties,
LP. Scheiber Ranch filed a petition for writ of mandate pursuant to CEQA to set aside
Lincoln’s certification of the EIR for the Specific Plan. It subsequently filed a second
amended petition for writ of mandate and complaint for declaratory and injunctive relief,
adding causes of action for deprivation of substantive due process and uncompensated
taking.

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 Following a hearing, the trial court granted the second amended writ petition in
part and denied it in part. It sustained without leave to amend the demurrer to the
deprivation of substantive due process and uncompensated taking causes of action. In
addition, the trial court made findings pursuant to section 21168.9, subdivision (b) and
concluded that the portions of the EIR that did not comply with CEQA -- i.e., the
discussion of impacts on transit and reliance on the Conservation Program as mitigation
for impacts to biological and agricultural resources -- were severable from the remaining
Specific Plan approvals. Accordingly, it issued a peremptory writ of mandate requiring
Lincoln to decertify those portions of the EIR that addressed reliance on the Conservation
Program as mitigation and impacts on transit and to suspend the same parts of the
Findings of Fact and Statement of Overriding Considerations. The writ required Lincoln
to bring the EIR into compliance with CEQA and precluded Lincoln from issuing grading
permits, allowing construction to start, or allowing any Specific Plan activity to occur
that could result in an adverse change to the environment until it had complied with the
writ.
STANDARD OF REVIEW
The standard of review in a CEQA case is abuse of discretion. (Sierra Club v.
County of Fresno (2018) 6 Cal.5th 502, 512 (Sierra Club).) But we determine de novo
whether the EIR’s discussion of environmental impacts, alternatives, or other required
information is adequate, that is, whether the discussion is “ ‘ “ ‘sufficient 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, see id. at pp. 513-516.) In
doing so, we keep in mind that our role is to determine whether the EIR is sufficient as an
informational document, not whether the agency’s conclusions are correct. (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
392 (Laurel Heights Improvement Assn.).) And we review the agency’s factual
determinations -- e.g., challenges to the scope of the EIR’s analysis of a topic, the

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methodology used for studying an impact, and the reliability or accuracy of the data upon
which the EIR relied -- for substantial evidence. (Sierra Club, at p. 516; Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
435 (Vineyard); Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213
Cal.App.4th 1277, 1296 (Habitat & Watershed Caretakers).) Under that standard, we
accord deference to Lincoln’s substantive factual conclusions, we do not set aside its
determination on the ground that an opposite conclusion would have been equally or
more reasonable, we do not reweigh conflicting evidence, and we resolve reasonable
doubts in favor of Lincoln’s findings and decision. (Sierra Club, at p. 512; Berkeley
Keep Jets Over the Bay Committee v. Board of Port Commissioner (2001) 91
Cal.App.4th 1344, 1356.) We presume the challenged EIR is adequate, and the party
challenging the EIR bears the burden of proving it is inadequate or that insufficient
evidence supports one or more of its conclusions. (Rialto Citizens for Responsible
Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 924-925 (Rialto).)
DISCUSSION
SCHEIBER RANCH’S APPEAL
I
Scheiber Ranch contends the EIR fails to adequately disclose agricultural resource
impacts and fails to mitigate to the extent feasible, referencing mitigation measure 3.2-1.
A
Scheiber Ranch challenges the EIR’s discussion of the Specific Plan’s impacts on
land subject to Williamson Act contracts. It contends the urban land uses contemplated
under the Specific Plan were not allowed under Williamson Act contracts, but the EIR
dismissed such impact.
To preserve agricultural and open space land and discourage premature urban
development, the California Land Conservation Act of 1965 (Gov. Code, § 51200 et
seq.), also known as the Williamson Act, authorizes local governments to establish

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agricultural preserves and enter into contracts with landowners to limit land within a
designated preserve to agricultural and compatible uses for the duration of the contract.
(County of Humboldt v. McKee (2008) 165 Cal.App.4th 1476, 1487-1488.) In return,
“ ‘the landowner is guaranteed a relatively stable tax base, founded on the value of the
land for open space use only and unaffected by its development potential.’ ” (Id. at
p. 1488.) Each contract between the landowner and local government has an initial term
of at least 10 years and provides for automatic annual renewals thereafter unless notice
of nonrenewal is given as provided in the statute. (Id. at p. 1489.) A contract may be
terminated at any time by giving the required notice, but the land use restrictions in the
existing contract remain in effect for the balance of the contract term. (Gov. Code,
§ 51092; County of Humboldt, at p. 1489.)
The EIR described Williamson Act contracts and acknowledged that the Specific
Plan area included 987.08 acres that were subject to active Williamson Act contracts,
plus 302.27 acres that had started the nonrenewal process under the Williamson Act. The
EIR stated that land subject to a Williamson Act contract could not be developed under
the Specific Plan until the land was no longer subject to a Williamson Act contract. It
explained that the General Development Plan for the Specific Plan prohibited the
development of land under an active Williamson Act contract. The EIR concluded that
because land under a Williamson Act contract would not be developed until the contract
was cancelled and because all agricultural uses existing at the time of annexation would
be permitted under the General Development Plan’s Agricultural Overlay District,
implementation of the Specific Plan would not conflict with Williamson Act contracts.
The Agricultural Overlay District would allow agricultural uses that were in existence
prior to adoption of the Specific Plan to continue until the land is developed for urban
uses under the Specific Plan. As a result, the EIR determined that the impact on
Williamson Act lands would be less than significant and no mitigation was required.

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 Scheiber Ranch claims the Specific Plan would result in a significant impact
because its proposed land uses conflict with the permitted land uses under Williamson
Act contracts. However, as the EIR makes clear, a project applicant could not develop
land subject to an active Williamson Act contract. Lincoln reiterated in response to
comments to the draft EIR that existing Williamson Act contracts would remain in effect
until nonrenewed or cancelled and no development may occur on Williamson Act
property unless and until any applicable Williamson Act contract was no longer in effect.
Responses to comments to a draft EIR are part of the EIR. (Cleveland National Forest
Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 516-517.)
Scheiber Ranch fails to demonstrate that the EIR improperly dismissed the Specific
Plan’s impact on land subject to Williamson Act contracts.
We also reject Scheiber Ranch’s contention that the EIR violates CEQA because
its baseline did not include existing Williamson Act contracts. Environmental baseline
refers to the physical and environmental conditions at the site of the proposed project.
(Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234
Cal.App.4th 214, 248 (Center for Biological Diversity).) Typically, the baseline for
environmental analysis is the existing conditions of the environment at time the
environmental analysis is performed. (Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority (2013) 57 Cal.4th 439, 445, 455; Center for Biological Diversity,
at p. 249.) The EIR acknowledged that the existing environmental setting included active
Williamson Act contracts.
Citing a June 20, 2014 memorandum from Maywan Krach of the Placer County
Community Development Resource Agency Environmental Coordination Services,
Scheiber Ranch claims Placer County agreed with Scheiber Ranch’s interpretation as to
whether a conflict with existing Williamson Act contracts might occur. This is incorrect.
The memorandum responded to the Notice of Preparation for the Specific Plan. The draft

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EIR was completed in 2016 and the Krach memorandum did not evaluate whether the
Specific Plan potentially impacted Williamson Act contracts.
B
Scheiber Ranch also contends Lincoln failed to support its decision to layer
agricultural and biological resources mitigation, and mitigation measure 3.2-1(b)
incorrectly treated habitat and farmland as interchangeable. The arguments lack merit.
We review an agency’s exercise of discretion in selecting the methodology to be
used in evaluating an environmental impact for substantial evidence. (South of Market
Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th
321, 337.) “The issue is not whether other methods might have been used, but whether
the agency relied on evidence that a ‘ “reasonable mind might accept as sufficient to
support the conclusion reached” ’ in the EIR.” (North Coast Rivers Alliance v. Marin
Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 642.)
The EIR explained that impacts to agricultural land and biological resources could
be addressed concurrently because land used for active agricultural production could also
provide habitat for sensitive species. It indicated that grazing was the primary
agricultural activity in the Specific Plan area, and grassland and rice fields made up the
highest acreage in the Specific Plan area. The EIR also described the habitats found in
grassland and rice fields and the various animal species that inhabit and/or forage in those
habitats. In response to a comment that the EIR failed to explain why it was necessary to
mitigate for agricultural land loss simultaneously with biological impacts, Lincoln said:
“As vast amounts of habitat types still present within the Plan Area consists [sic] of
agricultural land, much of which is occupied by [Conservation Program] Covered
Species, it [is] not possible [to] separate the biological and ecological value of remaining
farmland from the more naturalized tracts of land still present within the County. As part
of assembling a County-wide preserve with value to the Covered Species, it is an integral
part of the [Conservation Program] to combine remaining natural lands with the open

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space associated with farmland.” The EIR contained an adequate explanation for
Lincoln’s decision to use mitigation measure 3.4-1 and 3.4-2, which related to biological
impacts, as mitigation for impacts on agricultural resources.
Scheiber Ranch nevertheless urges that the EIR did not explain how the Specific
Plan’s impacts on agricultural resources would be mitigated using the same mitigation
measures for impacts on biological resources. We disagree.
In its discussion of mitigation measure 3.4-1, the EIR explained that the
approximately 715 acres of land Richland had acquired to mitigate impacts on habitat in
Area A were currently used as grassland/pasture and fallow/idle cropland with some
areas used to grow winter wheat, hay/non-alfalfa and other crops, showing some
connection between mitigation of biological impacts and the preservation of land used for
agricultural production. If the Conservation Program was not adopted and approved by
Placer County and Lincoln, mitigation measure 3.4-2 required that 1.35 acres of land be
conserved in perpetuity for every 1.0 acre of land cover impacted. Conservation
easements and management plans must provide for “long-term maintenance of biological
functions and values” and, whenever feasible, compatible agricultural use. Mitigation
measure 3.4-2 would, thus, help preserve agricultural land. Scheiber Ranch claims the
EIR ignored a majority of agricultural types, but the EIR discusses grasslands and rice
fields which made up the majority (over 90 percent) of the existing land in the Specific
Plan area.
Scheiber Ranch also asserts that Lincoln failed to adopt all feasible mitigation
measures to address the impact of converting farmland to non-agricultural uses.
When an EIR identifies significant effects on the environment that would occur if
a project is approved or carried out, the EIR must describe feasible measures that
could minimize the significant effects. (§ 21100, subd. (b)(3); Guidelines, § 15126.4,

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subd. (a)(1);2 see § 21081, subd. (a); Guidelines, § 15091, subd. (a); Cleveland National
Forest Foundation v. San Diego Assn. of Governments (2017) 17 Cal.App.5th 413, 433.)
“ ‘Feasible’ means capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, legal, social, and
technological factors.” (Guidelines, § 15364.) “Where several measures are available to
mitigate an impact, each should be discussed and the basis for selecting a particular
measure should be identified.” (Guidelines, § 15126.4, subd. (a)(1)(B).)
Scheiber Ranch says it suggested several mitigation strategies other than
conservation easements during the public review process but Lincoln rejected those
suggestions without analyzing their feasibility. The comment Scheiber Ranch references
was submitted long after the public review period had ended. Comments about the
environmental effects of a project must be made to lead agencies as soon as possible in
the review of environmental documents so that lead agencies may identify, at the earliest
possible time in the environmental review process, potential significant effects of a
project, alternatives, and mitigation measures that would substantially reduce the effects.
(§ 21003.1.) Lincoln was not required to respond to late comments. (§§ 21091,
subd. (d)(1), 21092.5, subd. (c); Chico Advocates for a Responsible Economy v. City
of Chico (2019) 40 Cal.App.5th 839, 852, fn. 9; Gray v. County of Madera (2008)
167 Cal.App.4th 1099, 1110 (Gray).)
In any event, we do not conclude from the record that the suggested measures to
help maintain farming were mitigation measures Lincoln should have considered. Full

2 All references to Guidelines are to the CEQA Guidelines (Cal. Code Regs., tit. 14,
§ 15000 et seq.). The Guidelines help public agencies implement CEQA and are binding
on them. (§ 21083, subds. (a), (e); Guidelines, § 15000.) We accord the Guidelines great
weight in interpreting CEQA, except where they are clearly unauthorized or erroneous, a
claim no party makes here. (Center for Biological Diversity v. Department of Fish &
Wildlife (2015) 62 Cal.4th 204, 217, fn. 4.)

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buildout under the Specific Plan would lead to the development of over 8,000 dwelling
units, millions of square feet of “employment-generating and commercial land uses,”
along with recreational, open space, public and educational land uses. Nothing in the
record shows that measures aimed at maintaining farming would be feasible where the
Specific Plan contemplated the development of farmland for non-agricultural uses. The
EIR stated that where an impact was determined to be significant or potentially
significant, mitigation measures were identified, where appropriate and feasible. A
reasonable inference from this statement is that the EIR identified all feasible mitigation
measures. (See King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th
814, 868 (King & Gardiner Farms, LLC).) Scheiber Ranch fails to show that Lincoln did
not consider all feasible mitigation measures for the Specific Plan’s impacts on
agricultural resources.
In its appellate reply brief, Scheiber Ranch contends that substituting agricultural
land with “any natural community” is inadequate mitigation. We do not consider the
claim because it was raised for the first time in the reply brief without a showing of good
cause. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Reichardt v. Hoffman
(1997) 52 Cal.App.4th 754, 764-765.)
II
Scheiber Ranch next argues the EIR does not adequately inform on water supply,
i.e., that the EIR’s analysis of impacts related to providing water to the proposed project
is deficient. It contends the EIR should have identified the nature of Lincoln’s rights, if
any, to pump groundwater. We reject this claim.
The EIR explained that the Specific Plan area was above the North American
Subbasin of the Sacramento Valley Groundwater Basin. It stated that “the [North
American] Subbasin [had] not been the subject of any proceeding to adjudicate rights to
pump groundwater.” Contrary to the claim by Scheiber Ranch, Vineyard, supra, 40
Cal.4th 412, and King & Gardiner Farms, supra, 45 Cal.App.5th 814, did not hold that

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an EIR must disclose the nature of the legal rights and entitlements to groundwater at the
time of project approval. Future water supplies identified and analyzed in the EIR must
bear a likelihood of actually proving available. (Vineyard, at p. 432.) However, an EIR
need not demonstrate that the supply of water is assured through signed, enforceable
agreements with a provider and already built or approved facilities. (Ibid.)
The EIR showed there was a likely and reliable source of groundwater for the
Specific Plan. The EIR stated, based on information from Lincoln’s 2015 Urban Water
Management Plan, that groundwater levels throughout Western Placer County had been
relatively stable for 25 years.3 The Water Supply Assessment for the Specific Plan
(Water Supply Assessment) likewise stated that Lincoln’s Groundwater Management
Plan and the Western Placer County Groundwater Management Plan indicated that
groundwater conditions underlying Lincoln and its sphere of influence showed currently
and historically stable groundwater elevations and reliable water quality.4 Accordingly,

3 The EIR explained that the California Water Code required public water suppliers to
prepare an urban water management plan, a water supply planning document that often
formed the basis of water study assessments prepared for individual projects. Lincoln
adopted its 2015 Urban Water Management Plan in August 2016.
4 The EIR explained that section 21151.9 required a water supply assessment to be
prepared for certain projects to ensure that long term water supplies were sufficient to
meet a project’s demands in normal, single dry and multiple dry years for a period of 20
years. The EIR stated that completion of a water supply assessment required collection
of proposed water supply data, an evaluation of existing use, a projection of anticipated
demand sufficient to serve the project for a period of at least 20 years, delineation of
proposed water supply sources, and an evaluation of water supply sufficiency under
single year and multiple year drought conditions. The Water Supply Assessment for the
Specific Plan was attached as Appendix H to the draft EIR.

The EIR further stated that Lincoln adopted a Groundwater Management Plan in 2003
to “(1) augment the overall water supply through conjunctive use and other means,
(2) project groundwater quality, (3) implement a groundwater monitoring program, and
(4) develop a public participation program.” The Western Placer County Groundwater

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the Water Supply Assessment concluded there was a reliable supply of groundwater for
the Specific Plan. Table 3.16-6 of the draft EIR showed the projected baseline water
demand and water supply for Lincoln and the Specific Plan under normal, single, and
multi-year conditions from 2020 to 2040. The chart showed a more than sufficient water
supply for Lincoln and the Specific Plan. Further, the EIR stated that as urbanization
occurred in and around Western Placer County and Lincoln, annual groundwater
pumping from the North American Subbasin was not anticipated to change significantly
from existing quantities because (1) the availability of surface water supplies from the
Placer County Water Agency and Nevada Irrigation District would continue to limit
reliance on groundwater to meet water demands; (2) the increase in groundwater
pumping as urbanization occurred would likely be more than offset by the reduction in
groundwater pumping by private agricultural users; and (3) efforts by partners of the
Western Placer County Groundwater Management Plan would help maintain sustainable
groundwater resources in Western Placer County. The EIR explained how the Specific
Plan would reduce groundwater use for irrigated crops within Lincoln’s sphere of
influence. In response to comments, Lincoln explained that conversion from agricultural
to municipal use in the Specific Plan area would conserve at least two acre-feet per acre
of water and a portion of the project water would be discharged back into Auburn Ravine,
helping recharge the groundwater in that area. The EIR concluded that the North
American Subbasin was expected to continue to sustainably provide for the supplemental
groundwater needs of Lincoln. Substantial evidence in the draft EIR supported that
conclusion.

Management Plan was developed by Lincoln, the Placer County Water Agency and the
City of Roseville to maintain a safe, sustainable and high quality groundwater resource
within the North American Groundwater Subbasin. Lincoln adopted the Western Placer
County Groundwater Management Plan in 2007. A copy of the Plan was attached to the
Water Supply Assessment for the Specific Plan.

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 Scheiber Ranch next contends that the EIR did not adequately analyze whether the
planned use of groundwater may result in overdrafting the local basin. Scheiber Ranch
says Lincoln pumped 2,686 acre feet of groundwater in 2011, causing the local
groundwater basin to go into overdraft condition.
The EIR quoted an internal memorandum about groundwater conditions in the
area of Lincoln, drafted in support of Lincoln’s Water Supply Master Plan and 2015
Urban Water Management Plan update: “Groundwater conditions in and around
[Lincoln] appear, in spite of the severe drought, relatively stable. The basin elevations
have not seen significant long-term decline and in some cases have shown some
recovery. Groundwater elevations have seen increased seasonal variability in some wells
and decreased in others but the natural recharge has been sufficient to refill the basin in
and around [Lincoln]. This indicates that the basin in and around [Lincoln] is operating
within its safe yield. Although basin decline was caused by the 2011 canal failure and
resulting emergency pumping, the basin was able to completely refill with no apparent
long-term effects in the [Lincoln] area. This indicates that the 2011 pumping may have
been above the area’s safe yield, but did not cause a permanent decline in groundwater
capacity. Unbroken periods of well records are difficult to locate in the area of this
review but neighboring wells with new and old data show consistent elevations.”
Scheiber Ranch concludes from this quote that the local groundwater basin went into an
overdraft condition in 2011. But Appendix F of the Water Supply Assessment stated
that, based on Department of Water Resources documentation, groundwater elevations
directly underlying Lincoln were not in a long-term state of decline. According to the
analysis in Appendix F of the Water Supply Assessment, groundwater elevation data
supported the conclusion that groundwater elevations were not declining within the
vicinity of Lincoln. And we found nothing in the EIR stating that groundwater elevations
underlying Lincoln were in an overdraft condition in 2011 or any other year.

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 Citing the internal memorandum, Scheiber Ranch concludes that the projected
groundwater pumping for the years 2025 to 2040 may result in overdrafting the aquifer
because the projected numbers significantly exceed the 2,686 acre-feet pumped in 2011.
The internal memorandum stated that “the 2011 pumping may have been above the area’s
safe yield.” The basis of that hypothesis was not disclosed. The EIR stated that
according to the 2007 Western Placer County Groundwater Management Plan the
sustainable yield for the Placer County portion of the North American Groundwater
Subbasin was set at 95,000 acre-feet per year. The Water Supply Assessment disclosed
existing and planned future uses on the North American Subbasin during normal years,
years with emergency supply issues and long-term average as follows:

We cannot conclude from the information in the EIR that the projected groundwater use
for 2025 to 2040 would result in overdrafting the North American Groundwater
Subbasin. We, therefore, reject Scheiber Ranch’s claim that the EIR was required to
disclose and analyze the significant impact of overdrafting the local basin.
Scheiber Ranch next argues that the surface water supply from the Placer County
Water Agency for Specific Plan purposes was not guaranteed and the EIR did not
adequately analyze projects that would compete with Lincoln for Placer County Water
Agency water.
The EIR explained that historically, the Placer County Water Agency was the
primary supplier of treated water to Lincoln and Lincoln would continue to primarily rely
on treated surface water from the Placer County Water Agency. The EIR acknowledged
that Lincoln’s contract with the Placer County Water Agency did not guarantee that water
to meet Lincoln buildout demand would be available. It also acknowledged that the

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Placer County Water Agency supplied water to other users and identified those users.
However, an EIR need not identify a guaranteed source of water; it is adequate for an
EIR to identify existing, available and sufficient sources of water for the project.
(Western Placer Citizens for an Agricultural & Rural Environment v. County of Placer
(2006) 144 Cal.App.4th 890, 909.) Here, the EIR stated that the Placer County Water
Agency’s 2015 Urban Water Management Plan substantiated it was likely that the Placer
County Water Agency’s existing water rights and contracts could meet Lincoln’s
buildout demand for Placer County Water Agency water. The EIR incorporated the
Placer County Water Agency’s 2015 Urban Water Management Plan by reference. That
document is in the record and supports the statement in the EIR. The EIR reasonably
relied on the Placer County Water Agency’s 2015 Urban Water Management Plan. (See
San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018)
26 Cal.App.5th 596, 617, 627.) The EIR specified Placer County Water Agency
available water supplies by acre-feet per year as of 2020 and by 2045 and the anticipated
demands on Placer County Water Agency water by Lincoln and all other users in the
same time period and showed that the available supply exceeded the anticipated demand
for Placer County Water Agency water.
With regard to competing projects, the Water Supply Assessment described other
projects anticipated by Lincoln and the estimated water demand from the Specific Plan
and other projects. Table 5-4 of the Water Supply Assessment showed sufficient water
supply to meet estimated water demand. The Placer County Water Agency’s 2015 Urban
Water Management Plan considered expected growth projections in its service area and
estimated customer demands at buildout. As we have explained, the EIR stated that the
Placer County Water Agency’s available water supplies as of 2020 and by 2045 were
more than sufficient to meet anticipated demands on Placer County Water Agency water,
including Lincoln and all other users. Based on the above, we reject Scheiber Ranch’s
claims regarding the Placer County Water Agency’s surface water supply.

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 Scheiber Ranch also claims the EIR incorrectly represented that the Nevada
Irrigation District will supply water to the Specific Plan. But Scheiber Ranch did not
raise this issue in the trial court. Points not urged in the trial court may not be raised for
the first time on appeal. (Damiani v. Albert (1957) 48 Cal.2d 15, 18; A Local & Regional
Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1804.)
III
Scheiber Ranch next argues the EIR fails to provide adequate information about
fair-share mitigation to determine effectiveness. Specifically, Scheiber Ranch claims the
EIR fails to provide adequate information about the fair share transportation-impact
mitigation fee to determine the effectiveness of the fee.
Lincoln and Richland assert that claims about the adequacy of mitigation for
automobile delay are moot because automobile delay is no longer a significant impact
under CEQA. We conclude that even if Scheiber Ranch’s claims are not moot, the
discussion of the fair-share mitigation fee required in mitigation measures 3.15-1, 3.15-14
and 3.15-15 is adequate under CEQA, and the EIR properly concluded that impacts 3.15-
4, 3.15-6, 3.15-17, 3.15-18, 3.15-19, 3.15-20 and 3.15-22 would be significant and
unavoidable.
“Both the CEQA Guidelines and judicial decisions recognize that a project
proponent may satisfy its duty to mitigate its own portion of a cumulative environmental
impact by contributing to a regional mitigation fund. Under the Guidelines, ‘a project’s
contribution to a significant cumulative impact’ may properly be considered ‘less than
cumulatively considerable and thus . . . not significant’ ‘if the project is required to
implement or fund its fair share of a mitigation measure or measures designed to alleviate
the cumulative impact.’ [Citation.] Similarly, courts have found fee-based mitigation
programs for cumulative impacts, based on fair-share infrastructure contributions by
individual projects, to constitute adequate mitigation measures under CEQA.
[Citations.]” (City of Marina v. Board of Trustees of California State University (2006)

17
39 Cal.4th 341, 364 (City of Marina).) To be adequate, a fair-share mitigation fee “must
be part of a reasonable plan of actual mitigation that the relevant agency commits itself to
implementing.” (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th
1173, 1188 (Anderson First Coalition).)
The EIR used level of service to analyze traffic operations on roadway facilities.
It explained, “Roadway [level of service] is a qualitative description of traffic flow from
the perspective of motorists, and is an indication of the comfort and convenience
associated with driving. The Highway Capacity Manual defines six levels of service
from [level of service] A representing the least congested traffic conditions to [level of
service] F representing the most congested traffic conditions.” Impact 3.15-1 disclosed
that the proposed project would increase traffic levels at six intersections under Lincoln’s
jurisdiction to an unacceptable level of service and that was a potentially significant
impact. To address that impact, mitigation measure 3.15-1 required the project applicant
to pay its fair share of the cost of specified improvements at the impacted intersections.
A project applicant must construct the listed improvements if it did not make its fair-
share payment.
The EIR explained that the Public Facilities Element Fee Program addressed the
capital facilities required for new development, including facilities for transportation, and
the cost of improvements would be funded by the collection of fees from new
development on an equivalent dwelling units basis, which represented each project’s
share in the capital facilities needed to serve development. Project applicants pay
development impact fees pursuant to Government Code section 66000 et seq. Under that
statute, Lincoln must identify the public improvement that a fee will be used to finance at
the time Lincoln imposes the fee on a specific development project and the fee must be
used exclusively for the purpose or purposes for which it is collected. (Gov. Code,
§§ 66006, 66008.) We presume that Lincoln will spend the fees collected on the

18
designated improvements. (Save Our Peninsula Committee v. Monterey County Bd. of
Supervisors (2001) 87 Cal.App.4th 99, 141 (Save Our Peninsula Committee).)
The EIR stated that the improvements listed in mitigation measure 3.15-1 were
included in Lincoln’s updated Public Facilities Element Fee Program. It explained that
the payment of the fair share fee and construction of improvements would occur prior to
the service level degrading to level of service D, as determined by a traffic study to be
funded by the project applicant. In response to comments, Lincoln further explained that
it would use the following formula from the Caltrans Guide for the Preparation of Traffic
Impact Studies to calculate the fair-share percentage:

Based on all of the above, the fair-share-fee alternative in mitigation measure
3.15-1 is adequate mitigation under CEQA. The fee was part of Lincoln’s program to
fund improvements required for new development and the improvements for mitigating
the traffic impacts identified in the EIR were part of that program. The same analysis and
conclusions apply to mitigation measures 3.15-14 and 3.15-15.
Anderson First Coalition, supra, 130 Cal.App.4th 1173, a case on which Scheiber
Ranch relies, did not hold that in all cases an EIR must state the dollar amount of a
project applicant’s fair-share fee. The EIR in Anderson First Coalition stated that the
project applicant must pay $611,214, which was 16.87 percent of the cost of Phase I of
improvements to the I-5 interchange, to mitigate the proposed project’s traffic impacts to
the interchange. (Id. at p. 1188.) The appellate court determined that 16.87 percent of
the estimated Phase I cost was $657,930, not $611,214. (Ibid.) In addition, the EIR
was vague about the program that would provide the mitigating improvements. (Id. at
pp 1188-1189.) Under those circumstances, the appellate court held that to be sufficient
under CEQA, the mitigation fee measure “must (1) specify an amount of $657,930 . . .
and note the amount is for Phase I only; (2) specify that the Project will also pay 16.87

19
percent of the remaining reasonable costs of the improvements; and (3) make these fees
part of a reasonable, enforceable plan or program that is sufficiently tied to the actual
mitigation of the traffic impacts at issue. . . .” (Id. at p. 1189.) Scheiber Ranch has not
demonstrated that the EIR in this case contains incorrect information about the fair-share
fee.
Napa Citizens for Honest Government v. Napa County Bd. Of Supervisors (2001)
91 Cal.App.4th 342, another case Scheiber Ranch cites, is also inapposite. Unlike the
parties challenging the EIR in that case, Scheiber Ranch is not challenging an
infeasibility finding. And Napa Citizens for Honest Government did not analyze what
information must be included in the EIR’s discussion of the Airport Industrial Area
Mitigation Fee.
Scheiber Ranch criticizes the EIR for not providing estimated improvement costs.
Mitigation measure 3.15-1 involved roadway improvements to be implemented when
certain intersections operating at an acceptable level of service operate at an unacceptable
level of service in the future because of project-related impacts. Scheiber Ranch does not
contend that at the time of the analysis in the EIR it was reasonable to predict the date
when traffic conditions at the identified intersections would require improvements to
restore operations to an acceptable level. The cost estimate involved in this case is
different from that in California Clean Energy Committee v. City of Woodland (2014)
225 Cal.App.4th 173, 196-199 (California Clean Energy Committee), where the fair-
share payments were for the preparation of a strategic plan and implementation strategy
and not a construction project, such as widening a road, to be undertaken sometime in the
future.5 The level of specificity required in an EIR is determined by the nature of the

5 Moreover, the mitigation measure in California Clean Energy Committee did not
require the lead agency to take any action. (California Clean Energy Committee, supra,
225 Cal.App.4th at p. 197.) In contrast, the fair-share fee here would be collected as part

20
project and the rule of reason. (Center for Biological Diversity, supra, 234 Cal.App.4th
at p. 233.) Scheiber Ranch fails to convince us that mitigation measure 3.15-1 is
deficient because it did not state how much improvements will cost when traffic
conditions reach an unacceptable level of service in the indeterminate future. We turn
next to the other traffic impact mitigation measures requiring the payment of a fair-share
fee.
To address a potentially significant impact the Specific Plan would cause to traffic
levels at intersections under Placer County’s jurisdiction, mitigation measure 3.15-4
required project applicants to pay their fair share of improvement costs to restore vehicle
traffic operations to an acceptable level of service. The EIR disclosed that there was no
existing funding program for those improvements. A requirement to pay fees without
any evidence that mitigation will actually occur is inadequate. (See also City of Marina,
supra, 39 Cal.4th at p. 365; Save Our Peninsula Committee, supra, 87 Cal.App.4th at
p. 140.) Accordingly, the EIR properly concluded that impact 3.15-4 would be
significant and unavoidable. (Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912,
938.)
An agency may determine that significant effects on the environment found to be
unavoidable are acceptable due to overriding concerns. (Guidelines, § 15092; see
Guidelines, § 15021, subd. (d).) Lincoln adopted a Findings of Fact and Statement of
Overriding Considerations. Scheiber Ranch does not contend the Findings of Fact and
Statement of Overriding Considerations document is deficient.
We reject Scheiber Ranch’s claim as to mitigation measure 3.15-4. The same
analysis and conclusions apply to mitigation measures 3.15-6, 3.15-17, 3.15-18, 3.15-19,
3.15-20 and 3.15-22.

of Lincoln’s Public Facilities Element Fee Program and the improvements identified in
impact 3.15-1 were included in the Program. Lincoln had to use the fee exclusively for
the purpose for which it was collected. (Gov. Code, § 66008.)

21
 IV
Scheiber Ranch further argues the EIR impermissibly defers analysis
and mitigation regarding impacts to biological resources. It claims mitigation measure
3.4-2(b), which addresses impacts on habitats of special-status species, is inadequate.
Scheiber Ranch asserts that mitigation measure 3.4-2(b) fails to mitigate impacts on
special-status species regulated by the California Department of Fish and Wildlife
(CDFW). Although most of the arguments lack merit, we agree that mitigation measure
3.4-2(b) is inadequate because it did not provide specific performance standards for
conservation sites.
As a threshold matter, we reject Lincoln and Richland’s claim of forfeiture.
Scheiber Ranch raised its appellate claim in the trial court.
The EIR identified a number of special-status plant and animal species with
potential to occur in the Specific Plan area. It explained the following: CDFW was
responsible for maintaining a list of endangered and threatened species under the
California Endangered Species Act (CESA), and Fish and Game Code section 2080
provides, among other things, that a person shall not “take” plants and animals listed
under CESA. “Take” is “ ‘any action or attempt to hunt, pursue, catch, capture, or kill
any listed species.’ ” Take of protected species incidental to otherwise lawful
management activities may be authorized under the Fish and Game Code, and
authorization from CDFW would be in the form of an incidental take permit under Fish
and Game Code section 2801.
The EIR acknowledged that the Specific Plan could have a substantial
adverse effect on special-status species through habitat modification. Mitigation measure
3.4-2(b)(1) provided in pertinent part: “If the [Conservation Program] has not been
adopted by the County and [Lincoln] and/or has not been approved by the agencies . . .
[¶] . . . [t]he project applicant shall obtain a Biological Opinion and any applicable
incidental take authorization from [the United States Fish and Wildlife Service] and

22
comply with the conditions and requirements therein.” (Italics omitted.) Mitigation
measure 3.4-2(b)(1) did not require an incidental take permit from CDFW.
However, the EIR recognized the requirement of take permits from CDFW and
stated that if the Conservation Program was not adopted prior to the entitlement and
buildout of the Specific Plan or prior to certain phases of the Specific Plan, project-level
permitting would be required pursuant to laws and regulations, including CESA. The
section on special-status plants likewise stated that take authorization may be required if
take could not be avoided. Mitigation measure 3.4-4 provided that if state-listed plants
were found during surveys, an incidental take permit would need to be obtained from
CDFW. Mitigation measure 3.4-8, which related to potential impacts on Central Valley
Steelhead and Chinook salmon, required obtaining necessary permits from CDFW.
Further, in response to CDFW’s concern that the Specific Plan may result in the take of
state-listed species, Lincoln stated that if the Conservation Program was not adopted and
approved, individual regulatory permits would be acquired. Based on the above, we
reject Scheiber Ranch’s challenge based on obtaining take permits from CDFW.
Scheiber Ranch also argues that bare reliance on regulatory compliance is
inappropriate where the EIR fails to provide sufficient information for permitting
agencies to actually exercise permitting authority. Because that claim is made in a
perfunctory manner, without supporting legal analysis and citation to authority, we do not
address it. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1
(Okasaki); Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.)
It appears that Scheiber Ranch also contends that the EIR may not rely on
compliance with regulations to mitigate potential adverse environmental impacts
because no surveys had been conducted in the Specific Plan area for specified plant and
animal species. But CEQA does not require the completion of all possible surveys prior
to the approval of a project. (Save Panoche Valley v. San Benito County (2013)
217 Cal.App.4th 503, 511-512, 523-524 (Save Panoche Valley).) The EIR stated that

23
certain surveys had been conducted in Area A. As for the remainder of the Specific Plan
area, the EIR provided a program-level analysis. When subsequent activities are
proposed, Lincoln must determine whether the environmental effects of those activities
were covered in the program EIR and whether additional environmental documents are
required.
The authority Scheiber Ranch cites to support its contention that bare reliance on
regulatory compliance is inadequate acknowledges that compliance with applicable
regulatory standards may serve as adequate mitigation of environmental impacts.
(1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar
2d ed. 2020) § 14.15, p. 14-20.1; see Guidelines, § 15126.4, subd. (a)(1)(B).) The
circumstances described in the case discussed in Kostka & Zischke are not present here.
(Id. at p. 14-21.) The EIR did not assume that compliance with regulatory requirements
would avoid significant adverse impacts on special-status species. Instead, after
analyzing how the removal or modification of habitat would have a potentially significant
impact on special-status species, and setting forth actions required under mitigation
measure 3.4-2(b), the EIR concluded that consultation with CDFW, the United States
Fish and Wildlife Service, and the U.S. Army Corps of Engineers, and the development
of a city-approved, project-level mitigation plan that satisfied the requirements set forth
in mitigation measure 3.4-2(b)(2), would ensure that habitat modification and potential
impacts to special-status species would be mitigated to a less than significant level.
Requiring consultation with a regulatory agency to formulate an adequate mitigation plan
based on the conditions of the project site can be adequate mitigation. (See Rialto, supra,
208 Cal.App.4th at p. 944, 946-947.) And compensating for a significant environmental
impact by providing substitute resources or environments, including through the
permanent protection of such resources in the form of conservation easements, as
provided in mitigation measure 3.4-2, can also be permissible mitigation. (Guidelines,
§ 15370, subd. (e).)

24
 Scheiber Ranch urges that Clover Valley Foundation v. City of Rocklin (2011)
197 Cal.App.4th 200 (Clover Valley Foundation) stands for the proposition that a
condition requiring regulatory compliance is inadequate if a survey of the project site is
not conducted before the lead agency approves the project. But Clover Valley
Foundation did not hold that the mitigation measures for impacts on biological resources
discussed in a program EIR are inadequate unless project site surveys have been
completed at the time of the analysis in the EIR. (Id. at pp. 234-237.)
Scheiber Ranch also argues that the EIR contained no performance standards for
the project-level mitigation plans and no analysis of how project-level mitigation plans
would mitigate significant impacts. We find merit in this argument, and conclude that
mitigation measure 3.4-2(b) is inadequate because it did not provide specific performance
standards for conservation sites.
As we have explained, when an EIR identifies significant effects on the
environment that would occur if a project is approved or carried out, the EIR must
describe feasible measures that could minimize the significant effects. (§ 21100,
subd. (b)(3); Guidelines, § 15126.4, subd. (a)(1); see § 21081, subd. (a); Guidelines,
§ 15091, subd. (a).) And the public agency must mitigate or avoid the significant effects
the project would have on the environment. (§ 21002.1, subd. (b); see also Guidelines,
§§ 15021, subd. (a), 15126.4, subd. (a)(3).) “[W]hen, for practical reasons, mitigation
measures cannot be fully formulated at the time of project approval, the lead agency may
commit itself to devising them at a later time, provided the measures are required to
‘satisfy specific performance criteria articulated at the time of project approval.’
[Citation.] In other words, ‘[d]eferral of the specifics of mitigation is permissible where
the local entity commits itself to mitigation and lists the alternatives to be considered,
analyzed and possibly incorporated in the mitigation plan.’ ” (Rialto, supra, 208
Cal.App.4th at p. 944, italics omitted.) “[T]he public agency bears the burden of
affirmatively demonstrating that, notwithstanding a project’s impact on the environment,

25
the agency’s approval of the proposed project followed meaningful consideration of . . .
mitigation measures.” (Mountain Lion Foundation v. Fish & Game Commission (1997)
16 Cal.4th 105, 134.) We review the agency’s conclusion that the mitigation measures
identified in the EIR will reduce the adverse effects of the project for substantial
evidence. (Habitat & Watershed Caretakers, supra, 213 Cal.App.4th at p. 1306.)
Mitigation measure 3.4-2(b)(2) stated that a project-level mitigation plan must
implement “the open space, agricultural land and biological resources strategy.” But the
EIR did not describe that strategy. To the extent “the open space, agricultural land and
biological resources strategy” referred to the conservation or mitigation strategy
described in the section relating to the draft Conservation Program, many special-status
species with potential to occur within the Specific Plan area were not among the 14 listed
covered species under the draft Conservation Program. Therefore, a reader could not
conclude that the strategy of the draft Conservation Program would address impacts to all
special-status species within the Specific Plan area.
Moreover, the EIR did not contain any performance standards for conservation
sites required under mitigation measure 3.4-2(b), i.e., standards for measuring the success
of a conservation site as mitigation for the loss of habitat of special-status species with
potential to occur within the Specific Plan area. (San Joaquin Raptor Rescue Center v.
County of Merced (2017) 149 Cal.App.4th 645, 669-670 (San Joaquin Raptor Rescue
Center) [concluding that mitigation measure requiring a qualified biologist to prepare a
management plan “ ‘to maintain the integrity and mosaic of the vernal pool habitat’ ” and
that regulatory agencies approve the plan merely set a generalized goal and contained no
standard by which the success or failure of mitigation efforts for impacts on vernal pool
species may be measured]; cf. Rialto, supra, 208 Cal.App.4th at pp. 942-943, [approving
mitigation measure that provided for a plant salvage and transportation plan that required
no less than 80 percent establishment of the plants transplanted into a receiver site];
Clover Valley Foundation, supra, 197 Cal.App.4th at p. 237 [performance standard was

26
that the project could not result in the take of black rails].) As an example, the EIR stated
that the Specific Plan area contained suitable habitat for the tricolored blackbird. It
described where this species typically nested and foraged. Mitigation measure 3.4-2(b)
did not explain how conservation sites required under a project-level mitigation plan
would provide nesting and foraging habitat for the tricolored blackbird so that the
Specific Plan’s potential adverse impacts to such habitat would be mitigated. The EIR
did not indicate how mitigation measure 3.4-2(b) could mitigate the potential significant
effects on the habitat of special-status species within the Specific Plan area. (Cf. Save
Panoche Valley, supra, 217 Cal.App.4th at pp. 526-528 [rejecting challenge to finding
that mitigation site could reduce biological impacts where the EIR contained information
that many special-status species resided in the mitigation site]; San Joaquin Raptor
Rescue Center, at pp. 671-672 [creating new vernal pools in conservation area was proper
mitigation for the project’s impacts on vernal pool areas].) The EIR also did not adopt a
reporting or monitoring program. (Guidelines, § 15091, subd. (d).) Mitigation measure
3.4-2(b) improperly deferred the formulation of mitigation measures for potential
significant adverse impacts on the habitat of special-status species.
Mitigation measure 3.4-2(b) is distinguishable from the mitigation measures
examined in California Native Plant Society v. City of Rancho Cordova (2009) 172
Cal.App.4th 603 and Rialto, supra, 208 Cal.App.4th 899, cases Lincoln and Richland
cite. The mitigation measure in California Native Plant Society required the project
applicant to prepare and implement a habitat mitigation and monitoring plan that would
preserve existing habitat or create new habitat for each acre of habitat impacted by the
project at specified ratios. (California Native Plant Society, at p. 610.) The plan was
required to include “ ‘[a] complete biological assessment of the existing resources on the
target areas,’ ‘[s]pecific creation and restoration plans for each target area,’ and
‘[p]erformance standards for success that will illustrate that the compensation ratios are
met.’ ” (Id. at pp. 610-611.) No similar requirements were included in this case. The

27
mitigation measure in Rialto required the project applicant to consult with the lead
agency if a particular species was observed at the project site during a series of surveys
and find a way to render any impact to the species insignificant before a grading permit
was issued. (Rialto, at pp. 944, 946-947.) The EIR here did not explain how mitigation
measure 3.4-2(b) would mitigate potential significant adverse impacts to the habitat of
special-status species with potential to occur within the Specific Plan site.
Ocean Street Extension Neighborhood Association v. City of Santa Cruz (2021)
73 Cal.App.5th 985, a case Richland cited after briefing was completed, is also
distinguishable. The mitigation measure in Ocean Street required a preconstruction
survey if tree removal could not occur outside the breeding season for nesting avian
species and provided actions to be taken to ensure that active nests were not disturbed,
i.e., delaying tree removal until nests were not in use and requiring a buffer zone for
construction activities. (Id. at pp. 850, 858.) The appellate court found such mitigation
measure complied with CEQA. (Id. at pp. 858-859.) Mitigation measure 3.4-2(b) does
not contain similar provisions. Mitigation measure 3.4-2(b) is inadequate because it did
not provide specific performance standards for conservation sites.
Scheiber Ranch further argues the EIR contained no explanation of why deferral
was necessary. We disagree with this claim.
The EIR explained that development under the Specific Plan would likely occur
separately and at different times over a 15- to 25-year period. It provided project-level
analysis for Area A (the initial phase) and program-level or “first-tier” analysis for Areas
B through J. The EIR contemplated that Lincoln must determine whether the
environmental effect of subsequent activities were covered in the program EIR and
whether a project-specific environmental document must be prepared. The above
statements explained why project-level mitigation plans could not be fully formulated at
the time the EIR was prepared.

28
 Scheiber Ranch complains that project-level mitigation plans would be approved
by Lincoln at its sole discretion and without consultation with wildlife agencies. But
the authorities Scheiber Ranch cites do not hold that CEQA requires mitigation plans
to be prepared in consultation with wildlife agencies. Nevertheless, mitigation measure
3.4-2(b)(5), (b)(6) and (b)(9) incorporate approval by regulatory agencies.
Scheiber Ranch also contends that under mitigation measure 3.4-2(b)(3), Lincoln
would not have the authority to deny a final map because of an inadequate project-level
mitigation plan and all discretionary approvals associated with a project would have been
issued by the time a project-level mitigation plan is formulated.
Approval of the Specific Plan was subject to the mitigation measures in the EIR.
Mitigation measure 3.4-2(b) required a project-level mitigation plan. Mitigation measure
3.4-2(b)(3) gave Lincoln discretion to act on a proposed project-level mitigation plan.
Approval of a project-level mitigation plan was not a ministerial act. In addition, Lincoln
may require the project applicant to provide a conceptual plan for a project-level
mitigation plan prior to approval of a tentative map. And mitigation measure 3.4-2(b)
required each project to demonstrate compliance with an approved project-level
mitigation plan prior to approval of a grading permit. Scheiber Ranch fails to show that
the timing of the approval of a project-level mitigation plan undermines the efficacy of
any approved plan.
V
Citing Sierra Club v. County of Fresno (2020) 57 Cal.App.5th 979, Scheiber
Ranch argues the trial court erred in ordering only partial decertification of the EIR and
declining to vacate the project pending Lincoln’s additional CEQA review.
After the case was fully briefed, Lincoln and Richland moved to dismiss Scheiber
Ranch’s challenge to the scope of the trial court’s peremptory writ of mandate, arguing
the claim is moot because Lincoln has complied with the writ. Scheiber Ranch opposes
the motion.

29
 The peremptory writ of mandate requires Lincoln to bring its EIR into compliance
with CEQA with respect to its discussion of impacts to transit facilities and reliance on
the Conservation Program for impacts to biological and agricultural resources. The writ
provides that the trial court would retain jurisdiction over Lincoln’s proceedings until the
trial court determined that Lincoln had complied with CEQA or that Lincoln had
determined not to reapprove the CEQA approvals. Lincoln’s supplemental return to the
writ stated that Lincoln had certified a partially recirculated EIR, amending its discussion
of impacts to transit facilities and mitigation for agricultural and biological impacts, and
Lincoln had reapproved all project entitlements. However, Lincoln and Richland did not
show that the trial court has decided the adequacy of Lincoln’s return. In any event,
Scheiber Ranch’s timely filing of a notice of appeal from the judgment automatically
stayed the peremptory writ of mandate. (Code Civ. Proc., § 916; Citizens for Non-Toxic
Pest Control v. Department of Food & Agriculture (1986) 187 Cal.App.3d 1575, 1580;
Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727-728.) The trial court lacks
jurisdiction to alter the judgment while the appeal is pending. (See Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190, 196-198.) Accordingly, we
reject the claim of mootness, deny the Lincoln and Richland motion to dismiss on that
basis, and turn to Scheiber Ranch’s appellate claim.
We review the trial court’s interpretation of section 21168.9 de novo. (Preserve
Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 287 (Preserve Wild Santee).)
In Sierra Club v. County of Fresno, supra, 57 Cal.App.5th 979, the Fifth District Court of
Appeal interpreted sections 21100 and 21151 and section 15090 of the Guidelines as not
authorizing partial certification. (Sierra Club v. County of Fresno, at pp. 982, 987.)
Sections 21100, subdivision (a) and 21151, subdivision (a) require the lead agency to
certify the completion of an EIR. (Sierra Club v. County of Fresno, at p. 987.) Section
15090 of the Guidelines requires that prior to approving a project, the lead agency must
certify that a final EIR has been completed in compliance with CEQA. (Sierra Club v.

30
County of Fresno, at p. 987.) The Fifth District Court of Appeal held: “CEQA and the
‘Guidelines provide for the certification of an EIR when it is complete, and the concept of
completeness is not compatible with partial certification. In short, an EIR is either
complete or it is not.’ ” (Id. at p. 988 [quoting its prior decision, LandValue 77, LLC v.
Board of Trustees of California State University (2011) 193 Cal.App.4th 675, 682
(LandValue 77, LLC)].) The Court of Appeal also said an EIR is either completed in
compliance with CEQA or it is not. (Sierra Club v. County of Fresno, at p. 982.) It
acknowledged case law questioning its interpretation of CEQA and the Guidelines but
said those decisions did not analyze language in sections 21100 or 21151 and section
15090 of the Guidelines. (Sierra Club v. County of Fresno, at p. 989.) It further held that
even if CEQA is interpreted to allow for partial certification, such a remedy was
inappropriate in that case because the CEQA violations tainted the certification of the
EIR as a whole. (Id. at p. 982.) In other words, the circumstances in that case did not
permit severance findings under section 21168.69, subdivision (b). (Sierra Club v.
County of Fresno, at p. 982.)
The majority of the Courts of Appeal have interpreted section 21168.9 differently.
The Second District Court of Appeal in Center for Biological Diversity v. Department of
Fish & Wildlife (2017) 17 Cal.App.5th 1245 held that CEQA permits partial
decertification. The appellate court said “an agency initially must certify an entire EIR
before approving a project. [Citations.] However, a court has additional options once it
has found an agency’s EIR certification noncompliant. (Id. at p. 1252, original italics.)
Section 21168.9 governs the writ of mandate that a court issues after ‘trial, hearing, or
remand from an appellate court’ to remedy a CEQA violation.” (Center for Biological
Diversity v. Department of Fish & Wildlife, at p. 1252.) The appellate court held that
section 21168.9, subdivision (a) authorizes a court to void the agency’s determination,
including an EIR certification, “in whole or in part” if the court makes severance findings
pursuant to section 21168.9, subdivision (b) to determine whether the voided portions are

31
severable and whether the remainder will be in full compliance with CEQA. (Center for
Biological Diversity v. Department of Fish & Wildlife, at pp. 1252-1253.) The appellate
court distinguished LandValue 77, LLC, supra, 193 Cal.App.4th 675, as involving a
situation where the trial court did not properly make severance findings under
section 21168.9, subdivision (b). (Center for Biological Diversity v. Department of Fish
& Wildlife, supra, at p. 1254.)
The Fourth District Court of Appeal in Preserve Wild Santee, supra,
210 Cal.App.4th 260, likewise held that “a reasonable, commonsense reading of
section 21168.9 plainly forecloses plaintiffs’ assertion that a trial court must mandate a
public agency decertify the EIR and void all related project approvals in every instance
where the court finds an EIR violates CEQA. Such a rigid requirement directly conflicts
with the ‘in part’ language in section 21168.9, subdivision (a)(1), which specifically
allows a court to direct its mandates to parts of determinations, parts of findings, or parts
of decisions. Such a rigid requirement also conflicts with the language in section
21168.9, subdivision (b), limiting the court’s mandates to only those necessary to achieve
CEQA compliance and, if the court makes specified findings, to only ‘that portion of a
determination, finding, or decision’ violating CEQA.” (Id. at p. 288, italics omitted; see
Golden Gate Land Holdings LLC v. East Bay Regional Park Dist. (2013) 215
Cal.App.4th 353, 373-376; see also Central Delta Water Agency v. Department of Water
Resources (2021) 69 Cal.App.5th 170, 205 (Central Delta Water Agency) [stating that
“[t]he plain language of section 21168.9 grants the trial court the discretion to leave
project approvals in place”]; Anderson First Coalition, supra, 130 Cal.App.4th at
pp. 1178-1181 [concluding that section 21168.9 authorized the trial court to sever the gas
station portion of a project and allow the rest of the project to proceed where the defects
in the EIR related only to the proposed gas station].)
We agree with the analyses in Center for Biological Diversity v. Department of
Fish & Wildlife and in Preserve Wild Santee. “Section 21168.9 was enacted in 1984 to

32
give the trial courts some flexibility in tailoring a remedy to fit a specific CEQA
violation.” (San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (2001)
89 Cal.App.4th 1097, 1103.) That statute sets forth the remedies a trial court may grant
if it finds that a determination by a public agency does not comply with CEQA.
(§ 21168.9, subd. (a); San Bernardino Valley Audubon Soc., at pp. 1102-1103.) Among
other things, the trial court may enter an order that the agency’s determination be voided
“in whole or in part.” (§ 21168.9, subd. (a); Guidelines, § 15234, subd. (a).) The phrase
“in whole or in part” “raise[s] the possibility of severing some part of the approvals and
the project from other parts and then invalidating or suspending only the severed parts.”
(POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 91 (POET, LLC);
accord King & Gardiner Farms, LLC, supra, 45 Cal.App.5th at pp. 895-896 [stating that
section 21168.9 requires courts to consider severance].)
The trial court’s order must include only those mandates that are necessary to
achieve compliance with CEQA and only those specific project activities in
noncompliance with CEQA. (§ 21168.9, subd. (b).) Further, the order shall be limited to
that portion of a determination, finding or decision or the specific project activity or
activities found to be in noncompliance if the court finds that (1) the portion or specific
project activity or activities are severable, (2) severance will not prejudice complete and
full compliance with CEQA, and (3) the court has not found the remainder of the project
to be in noncompliance with CEQA. (§ 21168.9, subd. (b); see Guidelines, § 15234,
subd. (b).) An agency may proceed with a project or individual project activities during
the remand period where the court has exercised its equitable discretion to permit project
activities to proceed during that period. (Guidelines, § 15234, subd. (c).)
The above provisions in section 21168.9 and section 15234 of the Guidelines
indicate that a court may order partial decertification of an EIR so long as the severability
criteria in subdivision (b) of section 21168.9 are satisfied. Although CEQA requires that
an EIR be completed before an agency makes a decision on a project, section 21168.9

33
governs the judicial remedies for a CEQA violation and section 21168.9 authorizes a trial
court to void an agency’s EIR certification in part upon making the requisite severance
findings. (Central Delta Water Agency, supra, 69 Cal.App.5th at p. 205; Center
for Biological Diversity v. Department of Fish & Wildlife, supra, 17 Cal.App.5th at
pp. 1252-1254; Preserve Wild Santee, supra, 210 Cal.App.4th at p. 288; see also POET,
LLC, supra, 12 Cal.App.5th at pp. 91-92.) To the extent sections 21100 and 21151
conflict with section 21168.9, the latter, being specific as to judicial remedies for CEQA
violations, controls. (San Francisco Taxpayers Assn. v. Board of Supervisors (1992)
2 Cal.4th 571, 577.) Scheiber Ranch fails to establish that the trial court erred in issuing
a limited writ after it made severance findings.
VI
Turning to the trial court’s ruling on the demurrer, Scheiber Ranch contends it
asserted a cognizable substantive due process claim.
A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v.
Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) We
independently evaluate the pleading, construing it liberally, giving it a reasonable
interpretation, reading it as a whole, and viewing its parts in context. (Id. at pp. 5-6.) We
assume the truth of all material facts properly pleaded or implied, but we do not assume
the truth of contentions, deductions or conclusions of law. (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 966-967.) Viewing matters through this prism, we determine de novo whether the
factual allegations of the challenged pleading are adequate to state a cause of action under
any legal theory. (Milligan, at p. 6.) The appellant bears the burden of demonstrating
that the demurrer was sustained erroneously. (Friends of Shingle Springs Interchange,
Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1485.)
The second cause of action asserted deprivation of substantive due process. It
alleged the following: Scheiber Ranch possessed a constitutionally-protected property

34
right based on its ownership of real property in Placer County. The Specific Plan
designated 101 acres of Scheiber Ranch’s property as Open Space Preserve and
prohibited all urban development on Preserve areas. Lincoln deprived Scheiber Ranch of
its constitutional and/or statutory rights by arbitrarily, unreasonably and oppressively
precluding future development rights. The trial court sustained the demurrer to the
substantive due process cause of action without leave to amend, concluding that Scheiber
Ranch did not allege facts showing that it had a vested property interest in developing its
property in the future and failed to show that it could amend its writ petition to state a
cause of action.
The due process clauses of the state and federal Constitutions guarantee all
persons due process of law when the state deprives them of their property. (Cal. Const.,
art. I, § 7; U.S. Const., 14th Amend., § 1.) A party asserting a substantive due process
claim must first establish a valid property interest within the protection of the
Constitution. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1184
(Clark); Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 181.) In the
context of land use and zoning decisions, a property interest is a right to land use to
which the plaintiff is entitled. (Breneric Associates, at pp. 181, 183-184.) “If a
cognizable property interest is implicated, a court must then determine whether the
government’s action was arbitrary or irrational.” (Clark, at p. 1184.)
The second cause of action alleged that Lincoln deprived Scheiber Ranch of its
property right to future development by designating a portion of its land as open space.
However, landowners do not have a vested right in an existing or future land use plan,
designation, or zoning classification. (HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508,
512, fn. 2; Save Oxnard Shores v. California Coastal Commission (1986) 179 Cal.App.3d
140, 151; Gilliland v. County of Los Angeles (1981) 126 Cal.App.3d 610, 617; Dale v.
City of Mountain View (1976) 55 Cal.App.3d 101, 110; Morse v. San Luis Obispo County
(1967) 247 Cal.App.2d 600, 602; see also Anderson v. City Council of Pleasant Hill

35
(1964) 229 Cal.App.2d 79, 90.) Because Scheiber Ranch failed to allege facts showing
that it had a protectible interest in not having its property designated as open space, it
failed to state a cause of action for a substantive due process violation and we need not
determine whether the pleading sufficiently alleged that Lincoln deliberately flouted the
law. (See Clark, supra, 48 Cal.App.4th at p. 1184; see generally Galland v. City of
Clovis (2001) 24 Cal.4th 1003, 1034-1036, 1039-1040.) The cases Scheiber Ranch cites
in support of its claim that it had a protectible property interest -- Jefferson Street
Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175 (Jefferson Street Ventures,
LLC) and Avenida San Juan Partnership v. City of San Clemente (2011) 201 Cal.App.4th
1256 -- involve whether development restrictions constituted an unconstitutional taking
without just compensation and not whether a protectible property interest within the
meaning of the due process clauses existed. Because we conclude Scheiber Ranch failed
to allege a property interest within the protection of the due process clauses and,
therefore, did not state a cause of action for deprivation of substantive due process, we do
not consider the claim in Richland’s cross-appeal that the substantive due process cause
of action was also time-barred.
Scheiber Ranch further asserts that if it failed to state a cause of action for
deprivation of substantive due process, it should be granted leave to amend.
We review a trial court’s decision to deny leave to amend for abuse of discretion.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the challenged pleading could be
amended to state a cause of action, the trial court abused its discretion in denying leave to
amend and we will reverse. (Ibid.) “It is the plaintiff’s burden on appeal to show in what
manner it would be possible to amend a complaint to change the legal effect of the
pleading; we otherwise presume the pleading has stated its allegations as favorably as
possible.” (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962.)
“To meet this burden, a plaintiff must submit a proposed amended complaint or, on
appeal, enumerate the facts and demonstrate how those facts establish a cause of action.

36
[Citations.] Absent such a showing, the appellate court cannot assess whether or not the
trial court abused its discretion by denying leave to amend.” (Cantu v. Resolution Trust
Corp. (1992) 4 Cal.App.4th 857, 890.) An assertion of an abstract right to amend is not
enough. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th
124, 163.)
Scheiber Ranch does not show how it can amend its pleading to allege that it has a
constitutionally-protected property interest. It fails to explain how authorities relating to
standing demonstrate that it can state a substantive due process claim. Accordingly, we
reject its claim of trial court error.
VII
Scheiber Ranch next contends the trial court erred in sustaining without leave to
amend the demurrer to the uncompensated taking cause of action on statute of limitations
grounds. Scheiber Ranch argues its taking cause of action was timely based on delayed
discovery and fraudulent concealment.
Government Code section 65009 governs the statute of limitations for actions or
proceedings challenging local zoning and planning decisions. “In enacting the statute,
the Legislature found and declared ‘that there currently is a housing crisis in California
and it is essential to reduce delays and restraints upon expeditiously completing housing
projects.’ [Citation.] It further found and declared that legal actions challenging ‘the
implementation of general plan goals and policies that provide incentives for affordable
housing, open-space and recreational opportunities, and other related public benefits, can
prevent the completion of needed developments even though the projects have received
required government approvals.’ [Citation.] The Legislature expressly intended
Government Code section 65009 ‘to provide certainty for property owners and local
governments regarding decisions made pursuant to [the Planning and Zoning Law (Gov.
Code, § 65000 et seq.)].’ [Citation.] ‘To this end, Government Code section 65009,
subdivision (c) establishes a short, 90-day statute of limitations . . . to a broad range of

37
local zoning and planning decisions.’ ” (1305 Ingraham, LLC v. City of Los Angeles
(2019) 32 Cal.App.5th 1253, 1260.) The statute requires strict compliance with the
limitations period. (Okasaki, supra, 203 Cal.App.4th at p. 1048.) Except in
circumstances inapplicable here, an action or proceeding to attack, review, set aside, void
or annul the decision of a legislative body to adopt or amend a specific plan must be
commenced within 90 days after the legislative body’s decision. (Gov. Code, § 65009,
subd. (c)(1)(A).) Any further action or proceeding is barred upon the expiration of the
time limits provided in Government Code section 65009. (Gov. Code, § 65009,
subd. (e).)
Scheiber Ranch does not dispute that Government Code section 65009,
subdivision (c)(1)(A) applies and that Scheiber Ranch did not bring its taking claim
within the 90-day limitations period. Instead, Scheiber Ranch argues the accrual of the
taking cause of action was postponed by the discovery rule and that the limitations period
was tolled by the fraudulent concealment rule. We turn first to the application of the
delayed discovery rule.
Generally, a cause of action accrues when the wrongful act is done, or the
wrongful result occurs, and the consequent liability arises. (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 397 (Norgart).) The delayed discovery rule is an exception to the
general rule. (Ibid.) The delayed discovery rule postpones accrual of a cause of action
until the plaintiff discovers or has reason to discover the cause of action. (Ibid.) A
plaintiff discovers the cause of action when he or she at least suspects a factual basis, as
opposed to a legal theory, for its elements. (Ibid.) A plaintiff has reason to discover the
cause of action when he or she has notice or information of circumstances that would put
a reasonable person on inquiry. (Id. at p. 398) The plaintiff bears the burden of pleading
and proving belated discovery of a cause of action or fraudulent concealment as an
excuse for late filing. (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166,
174; Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1533.)

38
 The delayed discovery rule may be expressed by the Legislature or implied by the
courts. (Norgart, supra, 21 Cal.4th at p. 397.) Government Code section 65009 does not
expressly provide for delayed discovery. But even if we assume the delayed discovery
rule may be applied to postpone the accrual of a cause of action governed by Government
Code section 65009, subdivision (c)(1), here Scheiber Ranch does not demonstrate trial
court error.
The state and federal Constitutions guarantee real property owners just
compensation when the government takes their property for a public use. (Jefferson
Street Ventures, LLC, supra, 236 Cal.App.4th at p. 1192.) A plaintiff seeking to
challenge a government regulation as an uncompensated taking may proceed under
several theories. (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 548 [161 L.Ed.2d
876].) The paradigmatic taking requiring just compensation is a direct government
appropriation or physical occupation of or ouster from private property. (Id. at p. 537.)
In addition, some government regulation of private property is deemed a per se taking for
Fifth Amendment purposes. (Id. at pp. 537-538.) Included in that category are
regulations that deprive an owner of all economically beneficial use of its property. (Id.
at p. 538.) Under the state Constitution, property is taken or damaged, requiring just
compensation, when “ ‘(1) the property has been physically invaded in a tangible manner;
(2) no physical invasion has occurred, but the property has been physically damaged; or
(3) an intangible intrusion onto the property has occurred which has caused no damage to
the property but places a burden on the property that is direct, substantial, and peculiar to
the property itself.’ ” (Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212, 1218,
italics omitted.)
The second amended writ petition and complaint alleged a physical taking: under
the Specific Plan, Lincoln would construct a fence that would exclude Scheiber Ranch
from its own property. Scheiber Ranch also alleged that the Specific Plan’s expansive
Open Space Preserve designation on Scheiber Ranch property denied Scheiber Ranch all

39
right to develop its property. The allegations of taking were based on provisions of the
Specific Plan and the effect of those provisions on Scheiber Ranch’s property.
The allegations of the pleading showed that Scheiber Ranch was aware of the
Open Space Preserve designation on its property when it submitted a written comment
regarding the draft EIR. That comment was dated October 10, 2016. The original writ
petition referenced “the Specific Plan documents” and alleged that Lincoln approved the
Specific Plan on December 12, 2017. The above allegations indicate Scheiber Ranch
discovered or had reason to discover its cause of action for uncompensated taking in 2016
or 2017. On January 12, 2018, it filed its writ petition, but Scheiber Ranch did not bring
a cause of action for uncompensated taking until November 7, 2019, well beyond the 90-
day limitations period.
Scheiber Ranch concedes it was aware that the Specific Plan included open space
designations on its property. Nevertheless, it claims the only information available to
Scheiber Ranch was that the restriction on development was based on the Conservation
Program (not the Specific Plan) and the public release of the Conservation Program in
2019 revealed that the Conservation Program did not restrict development. However, the
second amended writ petition and complaint alleged takings based on provisions in the
Specific Plan and not the draft or final Conservation Program. Scheiber Ranch does not
assert belated discovery of the provisions of the Specific Plan. Scheiber Ranch fails to
establish it could plead facts showing that its cause of action for uncompensated taking
was not time-barred under the delayed discovery rule.
Turning to the rule of fraudulent concealment, “ ‘the defendant’s fraud in
concealing a cause of action against him tolls the applicable statute of limitations, but
only for that period during which the claim is undiscovered by plaintiff or until such time
as plaintiff, by the exercise of reasonable diligence, should have discovered it.’
[Citation.] Like the discovery rule, the rule of fraudulent concealment is an equitable
principle designed to effect substantial justice between the parties; its rationale ‘is that the

40
culpable defendant should be estopped from profiting by his own wrong to the extent that
it hindered an “otherwise diligent” plaintiff in discovering his cause of action.’ ”
(Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931.) The plaintiff must
show the substantive elements of fraud and an excuse for late discovery of the facts.
(Britton v. Girardi (2015) 235 Cal.App.4th 721, 734.)
The second amended writ petition and complaint did not allege any fraud by
Lincoln that prevented Scheiber Ranch from discovering its cause of action for
uncompensated taking. Rather, the allegations in the pleading show that Scheiber Ranch
was aware of the Specific Plan and the open space designation for its property prior to
January 12, 2018. Scheiber Ranch fails to show how it can amend its pleading to allege
that the rule of fraudulent concealment tolled the Government Code section 65009
limitations period for its taking claim. Under the circumstances, we do not consider the
claim in Richland’s cross-appeal that Scheiber Ranch cannot allege facts sufficient to
state a claim for an unconstitutional taking in violation of the Fifth Amendment.
RICHLAND’S CROSS-APPEAL
VIII
In its cross-appeal, Richland contends the Scheiber Ranch challenge to mitigation
measure 3.2-1 is moot because Placer County has adopted the Conservation Program.
“[M]ootness occurs when an actual controversy that once was ripe no longer exists
due to a change in circumstances.” (Davis v. Fresno Unified School District (2020) 57
Cal.App.5th 911, 926; accord Association of Irritated Residents v. Department of
Conservation (2017) 11 Cal.App.5th 1202, 1221-1224.) The test for determining
whether a case is moot is whether the trial court can grant the plaintiff any effectual
relief. (Davis, at p. 926.)
The second amended petition for writ of mandate and complaint alleged that the
EIR did not comply with CEQA because it improperly deferred formulation of mitigation
measures inasmuch as it relied on a draft Conservation Program to mitigate for impacts to

41
biological and agricultural resources. That Placer County approved a final Conservation
Program in 2020 is irrelevant to our analysis whether the EIR certified in 2017 provided
sufficient information to allow government officials and the public to make an informed
decision. We deny Richland’s motion for judicial notice filed on March 29, 2021, for
that reason. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1; State of California
ex rel. Metz v. Farmers Group, Inc. (2007) 156 Cal.App.4th 1063, 1071, fn. 7.) Whether
the EIR was sufficient as an informational document is not rendered moot by the
approval of the final Conservation Program.
Citizens for Positive Growth & Preservation v. City of Sacramento (2019)
43 Cal.App.5th 609, the case Richland cites, is distinguishable. There was no change in
the law that renders Scheiber Ranch’s deferred mitigation claim moot. (Id. at pp. 625-
626.)
IX
Richland also argues the trial court erred in concluding that the formulation of
certain mitigation measures based on compliance with the Conservation Program were
improperly deferred.
As we have explained, deferring the formulation of the details of a mitigation
measure is permitted when the agency adopts specific performance standards the
mitigation will achieve, commits itself to mitigation, and identifies the types of potential
actions that can feasibly achieve the performance standards. (Guidance, § 15126.4,
subd. (a)(1)(B); Center for Biological Diversity, supra, 234 Cal.App.4th at pp. 244-245;
Rialto, supra, 208 Cal.App.4th at pp. 944-945.) Whether an EIR’s discussion of
mitigation measures is sufficient to comply with CEQA presents a mixed question of law
and fact and is generally subject to independent review. (King & Gardiner Farms, LLC,
supra, 45 Cal.App.5th at p. 866; see also Sierra Club, supra, 6 Cal.5th at p. 516;
Vineyard, supra, 40 Cal.4th at p. 435.) However, when factual questions predominate,
review under the more deferential substantial evidence standard is warranted. (Laurel

42
Heights Improvement Assn., supra, 47 Cal.3d at p. 407; King & Gardiner Farms, LLC, at
p. 866; see also Vineyard, at p. 435.)
Mitigation measures 3.2-1, 3.4-1 and 3.4-2 provided that the project applicant
must comply with the Conservation Program in order to mitigate impacts to agricultural
and biological resources if the Conservation Program is adopted and approved. The EIR
stated that compliance with the Conservation Program would mitigate, partially or
otherwise, the Specific Plan’s potential significant impacts on agricultural and biological
resources. But the EIR did not set forth performance criteria for the final Conservation
Program. Richland fails to show why Lincoln could not set forth standards the final
Conservation Program had to satisfy to mitigate the Specific Plan’s agricultural and
biological resource impacts.
The EIR stated, “A key component of the conservation strategy is based on land
cover mitigation. In addition to wetland mitigation, impacts to specific land cover types
(e.g., annual grassland, agriculture, etc.) would be tracked, and in-kind mitigation would
occur at ratios of 1:1.25, 1:1.35 or 1.5, depending on the land cover.” Mitigation
measures must be able to reduce the potential significant environment impact. (Gray,
supra, 167 Cal.App.4th at p. 1119.) But there is no explanation in the EIR how the land
cover mitigation required under the Conservation Program would mitigate the potential
significant impacts to agricultural and biological resources identified in the EIR.
Moreover, at the time of the analysis in the EIR, the Conservation Program was in
draft form only, had not been reviewed under CEQA, and had not been considered for
adoption by Placer County or state and federal regulatory agencies. “ ‘An EIR is
inadequate if “[t]he success or failure of mitigation efforts . . . may largely depend upon
management plans that have not yet been formulated, and have not been subject to
analysis and review within the EIR.” ’ ” (Preserve Wild Santee, supra, 210 Cal.App.4th
at p. 281; see also Vineyard, supra, 40 Cal.4th at pp. 440-441 [holding that it was
improper to tier impacts analysis in an EIR on a future environmental document];

43
California Clean Energy Committee, supra, 225 Cal.App.4th at pp. 195-196; San Joaquin
Raptor Rescue Center, supra, 149 Cal.App.4th at p. 670.) We conclude that the
discussion of mitigation measures based on compliance with a yet-to-be reviewed and
approved Conservation Program is inadequate.
Richland contends it is well settled that compliance with regulatory standards is
adequate mitigation under CEQA. Citing what appears to be the March 2016 draft
Conservation Program, Richland says the Conservation Program must satisfy various
statutory and regulatory standards. Although what appears to be a draft Conservation
Program is in the record before us, Richland fails to show, and we have not found, that
the draft Conservation Program was included as part of the draft or final EIR. Lincoln
could not have incorporated the draft Conservation Program into the EIR by reference
because, as the draft EIR acknowledged, the draft Conservation Program was not publicly
available. (Guidelines, § 15150, subd. (b).) An agency fails to proceed in the manner
provided in CEQA if it certifies an EIR based on information not actually incorporated or
described in the EIR. (See Vineyard, supra, 40 Cal.4th at p. 442.) Unlike in Oakland
Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 907-910, a case
Richland cites, the EIR did not describe statutory or regulatory standards the
Conservation Program must satisfy. “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.” (Laurel Heights Improvement
Assn., supra, 47 Cal.3d at p. 405.) That the lead agency had considered an issue and
made certain conclusions does not obviate the need for the EIR to discuss a mitigation
measure so that the public may be equally informed. (See Id. at pp. 404-405.) Richland
fails to demonstrate trial court error.
X
Richland further challenges the trial court’s ruling that the EIR’s analysis of transit
impacts violated CEQA. According to Richland, the EIR applied significance criteria for

44
transit impacts and explained why impacts will be less than significant. Richland argues
substantial evidence supported the less-than-significant-impact conclusion, and nothing
more was required.
A lead agency is responsible for considering the effects, both individual and
collective, of all activities involved in a project. (§ 21002.1, subd. (d).) It “bears a
burden to investigate potential environmental impacts.” (County Sanitation Dist. No. 2 v.
County of Kern (2005) 127 Cal.App.4th 1544, 1597.) “While foreseeing the
unforeseeable is not possible, an agency must use its best efforts to find out and disclose
all that it reasonably can.” (Guidelines, § 15144.) If a project is of regional or areawide
significance, the lead agency must consult with transportation planning agencies and
public agencies that have transportation facilities within their jurisdictions that could be
affected by the project. (§ 21092.4, subd. (a).) “Transportation facilities” include public
transit within five miles of the project site and rail transit service within 10 miles of the
project site. (§ 21092.4, subd. (b).) Consultation shall be for the purpose of the lead
agency obtaining information concerning the project’s effect on public transit and rail
transit service within the jurisdiction of the transportation planning agency or the public
agency that is consulted by the lead agency. (§ 21092.4, subd. (a).) If the lead agency
determines that the proposed project will not have a potentially significant adverse effect
on the environment, the EIR must contain a statement briefly indicating the reasons for
the determination. (§ 21100, subd. (c).) We review the agency’s determination that the
project will not have a significant adverse impact for substantial evidence. (San
Francisco Baykeeper, Inc. v. State Lands Commission (2015) 242 Cal.App.4th 202, 228.)
The EIR described the public transit services in Lincoln, including the Lincoln
Transit Dial-A-Ride and Placer County Transit. It stated there was no existing transit
service in the Specific Plan area and no transit stops were located in the vicinity of the
project site, but that Lincoln and Placer County might provide transit service to the area

45
in the future. The EIR did not state whether there was public transit service within five
miles or rail transit service within 10 miles of the Specific Plan site.
The EIR indicated that impacts to the transit system would be considered
significant if the Specific Plan would create a demand for mass transit services above the
capacity which was provided or planned or would interfere with existing or planned
transit facilities. Richland states in its appellate brief that existing transit serving Lincoln
stopped once per hour during the day, and the Developing Communities designation for
the Specific Plan area meant that transit options were infrequent or non-existent, but that
transit service may be available every 30 minutes or less at buildout. The EIR concluded
that the Specific Plan’s impact on transit was less than significant. But the EIR did not
discuss whether the creation of approximately 8,200 residential dwelling units, 4.6
million square feet of commercial space, and the public/semipublic facilities
contemplated under the Specific Plan, or the potential of having transit service in the
Specific Plan area available every 30 minutes or less, would create a demand for transit
services that would exceed the existing or future capacity for those services. Nor did the
EIR provide any analysis supporting a conclusion that the Specific Plan’s impacts on
transit services would be less than significant. The decision as to whether a project may
have one or more significant effects must be based on substantial evidence in the record
of the lead agency. (Guidelines, § 15064, subd. (f).) Richland fails to point to any
portion of the record containing substantial evidence showing that the Specific Plan
would have a less-than-significant impact on transit services. A bare conclusion that the
Specific Plan would have a less than significant impact on transit is inadequate under
CEQA. (See § 21168.5; Californians for Alternatives to Toxics v. Department of Food &
Agriculture (2005) 136 Cal.App.4th 1, 13.)
The EIR’s discussion of impacts on transit focused on the construction of transit
facilities. The EIR stated that the project would include facilities, such as bus stops, bus
turnouts, bus shelters, and park-and-ride lots, which would be used in the event public

46
transit service providers extended service to the Plan Area. A bus transfer lot was being
considered as part of a joint use park-and-ride lot to support transit use. Impact 3.15-11
said the facilities that would be provided under the Specific Plan were adequate to
support future transit demand and the expansion of transit service to the project area, but
there was no discussion of what future transit demand and service would be, and
therefore, no basis for determining whether the facilities provided under the Specific Plan
would be adequate to support the future demand and service. Although the EIR
concluded that the Specific Plan did not interfere with existing or planned transit
facilities, there was an inadequate description of those existing or planned transit
facilities.
Placer County Principal Planner Crystal Jacobsen commented that the draft EIR
did not include a transit service plan, which was “a vital element to a mobility package,”
and the Specific Plan documents did not mention future transit to the Specific Plan area.
She asked whether Lincoln had a transit plan to cover the Specific Plan area. Lincoln
responded that buildout of the project would occur in phases over an extended period of
time and transit service to the area would evolve as development occurred. Lincoln said
transit service planning for the project area was most appropriately conducted as each
phase of development occurred to reflect travel and land development conditions at that
time and that planning would be carried out during the tentative map stage for each
project phase. However, Lincoln did not set forth any performance criteria for future
transit service planning to mitigate transit impacts nor commit itself to mitigation. (See
Rialto, supra, 208 Cal.App.4th at pp. 944-945.) Richland fails to demonstrate that the
EIR’s discussion of transit impacts complied with CEQA.
DISPOSITION
The judgment with regard to mitigation measure 3.4-2(b) is reversed. The
judgment is affirmed in all other respects. The matter is remanded to the trial court with
directions to determine whether severance is proper as to mitigation measure 3.4-2(b) and

47
enter a judgment and issue a writ of mandate consistent with this opinion. The parties
shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

/S/
MAURO, Acting P. J.

We concur:

/S/
DUARTE, J.

/S/
HOCH, J.

48