California Native Plant Society v. City of Santa Cruz

*1004MIHARA, Acting P. J., Concurring.

Although I agree with the result reached in the majority opinion, I write separately to explain why I find appellants’ contentions unavailing.

I. Background

Arana Gulch is a parcel of more than 60 acres of real property owned by the City of Santa Cmz (the City). The project proposed by the City is the Arana Gulch Master Plan (the Plan). The Plan is designed to serve two sets of key objectives. The City wants to protect the natural resources and sensitive habitat in Arana Gulch while providing a high level of public access that will permit the City to educate not only pedestrian visitors but also disabled visitors about resource protection through interpretive displays and programs. To provide the highest level of public access to Arana Gulch, the Plan proposes the creation of a trail system that will include a multiuse, paved, ADA-compliant,1 east-west through trail that will connect the adjacent communities and allow for pedestrian, wheelchair, and bicycle access.

The City’s environmental impact report (EIR) for the Plan concludes that the proposed multiuse trail could have a significant impact on biological resources, as it would pass through an area that possibly contains a seed bank for the Santa Cruz tarplant. The EIR identifies four possible alternatives to the proposed multiuse trail that might reduce or eliminate the Plan’s significant impacts. Alternative 1 is no project, and it would accomplish none of the project objectives. Alternative 2 is similar to the proposed project, but the multiuse trail would not travel through the Port District property, thereby providing a reduced level of public access. Alternative 2 would not reduce the impact of the proposed project on the Santa Cruz tarplant. Alternative 3 is similar to the proposed project, but the east-west through trail would be unpaved, thereby precluding access for the disabled. Alternative 3 would reduce the impact of the proposed project on the Santa Cruz tarplant, and it was identified in the EIR as the environmentally superior alternative. Alternative 4 would provide for a trail system, but there would be no paved trails and no east-west connector trail. Alternative 4 would preclude access for the disabled and provide a reduced level of public access for the nondisabled.

The city council certified the EIR, and it rejected the four alternatives identified in the EIR on the grounds that none of the alternatives would satisfy all of the “key objective[s]” of the project.

II. Discussion

“ ‘We may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. “Our *1005limited function is consistent with the principle that ‘[t]he purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ ”... We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements.’ ” (Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1350 [46 Cal.Rptr.3d 902] (Preservation Action Council).)

“Judicial review of an agency’s decision to certify an EIR and approve a project ‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ [Citations.] Thus, we consider only whether the City failed to comply with CEQA or made determinations that were not supported by substantial evidence.” (Preservation Action Council, supra, 141 Cal.App.4th at p. 1352.)

A. Reasonable Range of Alternatives

Appellants contend that the EIR failed to set forth a reasonable range of alternatives because none of the alternatives fully satisfied the City’s “key objective[s],” which included providing an ADA-compliant trail. In appellants’ view, the failure of the EIR to include an alternative that met all of the City’s “key objective[s]” “created a false choice between an ADA trail and avoiding significant impacts to tarplant.”

“ ‘CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. . . . [A]n EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, or to the location of the project, which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code, § 21002); and (2) may be “feasibly accomplished in a successful manner” considering the economic, environmental, social and technological factors involved.’ ” (Preservation Action Council, supra, 141 Cal.App.4th at p. 1350.)

Appellants’ contention lacks merit. First, although appellants claim that the EIR does not include an alternative that provides for an ADA-compliant trail, alternative 2 in fact provides for an ADA-compliant trail. Second, CEQA (Cal. Environmental Quality Act; Pub. Resources Code, § 21000 et seq.) neither explicitly nor implicitly requires that an EIR identify a single *1006alternative that meets all of the project’s key objectives and is environmentally superior. Indeed, it may be impossible to identify such an alternative to a project where the circumstances dictate that the key objectives cannot be met without some significant environmental impact. Appellants do not point to anything in the administrative record which indicates that an environmentally superior alternative exists that would satisfy all of the Plan’s key objectives. Finally, the EIR did not “create a false choice” between disabled access and environmental impact on the Santa Cruz tarplant. By discussing a range of alternatives which included alternatives that met some of the Plan’s key objectives with reduced environmental impact, the EIR presented the city council with a reasonable range of choices that allowed the city council to weigh the importance of each of the Plan’s key objectives against the environmental impact associated with those objectives. CEQA does not require more of the EIR’s range of alternatives.

Appellants also argue that the City was required to consider offsite alternatives for an east-west bike path, and they imply that the EIR was required to contain a discussion of such alternatives. The administrative record demonstrates that the City has over many years considered a number of possible offsite routes for an east-west bike path. Appellants ignore the fact that the project under consideration by the City here was not an east-west bike path but a master plan for Arana Gulch. While an offsite route for the bike path might have eliminated the need for a bike path through Arana Gulch, it would not have changed the need for disabled access or the City’s desire to provide the highest level of public access to Arana Gulch by providing an east-west through connector trail. Some of the alternatives considered in the EIR would have omitted an east-west connector through Arana Gulch. Had one of those alternatives been selected, any east-west bike path would necessarily have had to be offsite. Under these circumstances, the EIR provided sufficient information to the public about alternatives to avoid the environmental consequences of the Plan, and the administrative record provided ample information to inform the City’s legislative decision regarding the relative importance of the bike path objective of the Plan.

B. Feasibility of Alternatives

Appellants contend that the City’s findings that the alternatives were not feasible were erroneous because they were inconsistent with the EIR’s inclusion of these alternatives as potentially feasible alternatives.

An EIR “must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation.” (Cal. Code Regs., tit. 14, § 15126.6, subd. (a), italics added (CEQA Guidelines); see Preservation Action Council, supra, 141 Cal.App.4th at pp. 1350-1351.) *1007When the legislative body certifies the EIR, it has made a determination that the EIR contains the required consideration of potentially feasible alternatives. After the certification of the EIR, the legislative body makes a separate determination whether “[s]pecific economic, legal, social, technological, or other considerations . . . make infeasible the mitigation measures or alternatives identified in the environmental impact report” and whether “specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” (Pub. Resources Code, § 21081, subds. (a)(3), (b), italics added.)

Thus, while the certification of the EIR is a determination that the EIR adequately discusses potentially feasible alternatives, CEQA explicitly permits the legislative body to make a postcertification determination that these potentially feasible alternatives are not actually feasible, so long as the legislative body makes the requisite findings citing specific reasons for its infeasibility determination. There is no inconsistency between the City’s certification of an EIR that discusses potentially feasible alternatives and the City’s determination that those alternatives are not actually feasible.

Appellants argue that the City based its infeasibility determination on impermissible considerations. This argument falters on the fact that CEQA expressly permits such a determination to be based on “other considerations” (Pub. Resources Code, § 21081, subd. (a)(3)), and we review the City’s determination solely for substantial evidence to support those considerations (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 596 [54 Cal.Rptr.3d 366]). Here, the record contains substantial evidence to support the City’s determination that the alternatives were infeasible because they would fail to satisfy the Plan’s key objectives. None of the alternatives would provide a trail that could not only be accessed by the disabled, but would also provide an east-west connector that would ensure the highest level of public access to Arana Gulch and complete a bicycle corridor that would encourage alternative transportation. The City’s desire to fulfill the Plan’s key objectives could not possibly be deemed an impermissible consideration, and it plainly fell within CEQA’s authorization that an infeasibility finding may be based on “other considerations.”

CEQA did not require the City to choose the environmentally superior alternative. It simply required the City to consider environmentally superior alternatives, explain the considerations that led it to conclude that those alternatives were infeasible, weigh those considerations against the environmental harm that the Plan would cause, and make findings that the benefits of those considerations outweighed the harm. Here, the City considered environmentally superior alternatives, explained the considerations that led it to conclude that those alternatives were infeasible, weighed those *1008considerations against the environmental impact of the Plan, and made findings that these considerations outweighed the environmental impact. The City fully complied with CEQA.

III. Conclusion

I agree that the judgment should be affirmed.

A petition for a rehearing was denied October 14, 2009, and the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied December 17, 2009, S177419.

ADA stands for the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.).