Patane v. County of Santa Clara CA6

Filed 6/30/21 Patane v. County of Santa Clara CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

CARMEN PATANE, H048133
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 19-CV347111)

v.

COUNTY OF SANTA CLARA et al.,

Defendants and Respondents;

SHAMROCK SEEDS COMPANY,

Real Party in Interest and
Respondent.

I. INTRODUCTION
This CEQA1 action arises from the proposal of real party in interest Shamrock
Seeds Company (Shamrock Seeds) to expand and modernize its agricultural research
facility in unincorporated Santa Clara County (County) by, among other things, building
new greenhouses. After preparing an environmental impact report (EIR) pursuant to
CEQA concerning the proposed project and holding a hearing, the County’s Board of
Supervisors approved the Shamrock Seeds project.
Plaintiff Carmen Patane, a neighboring property owner, challenged the County’s
approval of the Shamrock Seeds project by filing a petition for writ of mandate alleging

1
California Environmental Quality Act, Public Resources Code section 21000
et seq.
violations of CEQA’s requirements for environmental review with respect to aesthetics
and historical resources. The trial court denied the petition for writ of mandate and on
May 4, 2020, judgment was entered in favor of respondents.
On appeal, Patane contends that the trial court erred in denying the petition for
writ of mandate because (1) the EIR’s conclusions regarding the aesthetic impact of light
emitted from the proposed greenhouses during non-daylight hours, specifically sky glow
on cloudy skies, are not supported by substantial evidence; (2) the EIR’s mitigation
measures for greenhouse lighting are inadequate; and (3) the County’s response to
comments by Patane’s lighting expert are inadequate.
For reasons that we will explain, we find no merit in Patane’s contentions.
We will therefore affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Proposed Project and Environmental Impact Report
The proposed Shamrock Seeds project is located on Holsclaw Road in a rural area
of unincorporated Santa Clara County where Shamrock Seeds has an existing agricultural
research facility. The proposed project would expand and modernize the research facility
by demolishing the existing greenhouses and constructing two new greenhouses, an
agricultural research building, a parking lot, an electrical utility building, a water tank,
and a stormwater detention pond. The new greenhouses would have internal illumination
during a portion of non-daylight hours.
The draft environmental impact report (DEIR) for the Shamrock Seeds project was
released in October 2018. The many environmental impacts addressed in the DEIR
include the project’s impacts on aesthetics and historical resources. The DEIR’s
conclusions regarding the aesthetic impact of light and glare from the proposed new
greenhouses were based on a lighting analysis conducted for the proposed project, as set
forth in the June 2018 lighting technical memorandum prepared by Neil Hinckley of
Michael Baker International and included with the DEIR as Appendix B.

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 As summarized in the DEIR, Hinckley’s lighting analysis began by taking baseline
measurements of light levels from the existing greenhouses in order to compare existing
conditions to the modeling of the light levels from the proposed greenhouses. Hinckley
then analyzed the impact of horizontal illumination, vertical illumination, uplight and sky
glow, and glare from the proposed greenhouses.
Regarding horizontal illumination from the proposed new greenhouses, Hinckley
determined that “the light emanating from the proposed greenhouses would result in a
maximum horizontal illumination of 0.3 fc[2] at the nearest property line, which would
fall to 0.1 fc at 10 feet beyond the northwest property line on the adjacent property at
6650 Holsclaw Road. Thus, horizontal illumination would not exceed the 0.1 fc
threshold 10 feet beyond a property line and the impact would be less than significant.”
Hinckley also determined that the impact of uplight and sky glow from the
proposed greenhouses would be less than significant: “[T]he sky brightness due to the
proposed greenhouses would be well below the 0.1x threshold (10 percent increase) both
at the property edge (2.2 percent change) and at a distance of five kilometers from the
property boundary (no change). This increase in sky brightness would not be noticeable
as it typically takes an eight percent difference (increase or decrease) in brightness to be
noticeable to humans. The sky glow of nearby cities is significantly brighter than the sky
glow that would result from the new greenhouses.”
Regarding the impact of sky glow from greenhouse lighting on cloudy skies,
Hinckley stated that “[a]s part of the lighting analysis in Appendix B, a calculation grid
was placed at cloud level (6,000 feet), facing down, and used to calculate what the

2
“Footcandles are the most common unit of measure used by lighting
professionals to calculate light levels in businesses and outdoor spaces. A footcandle [fc]
is defined as the illuminance on a one square foot surface from a uniform source of
light.”
( [as of Jun. 29, 2021], archived at .)

3
illuminance on the clouds would be. The maximum illuminance value at cloud level was
approximately 0.03 fc.” Hinckley determined that that the impact of sky glow on cloudy
skies would be less than the .10 fc threshold of significance.
Regarding the impact of glare from the proposed greenhouses, Hinckley
concluded that “glare from the proposed project would be unnoticeable on average to
barely discernible in the worst case. As a result, glare from the project would not exceed
the 20 GR threshold (‘barely noticeable’) and the impact would be less than significant.”
However, Hinckley determined that the impact of vertical illumination from the
proposed greenhouses would be significant, because “[v]ertical illumination from the
proposed project greenhouses would exceed the 0.1 fc threshold by 79 times as measured
10 feet from the northwest property line on the adjacent property in the vertical plane.”
Hinckley further determined that there were mitigation measures that would reduce the
impact of vertical illumination to a less than significant level.
The mitigation measures recommended by Hinckley, designated MM AES-1.1,
were as follows: “One or more solid barriers shall be installed within four feet of each of
the proposed lighted greenhouses along the northwest side to reduce the vertical
illuminance at the northwest property line to levels below those specified in the 2011
Model Lighting Ordinance from the International Dark Sky Association/Illuminating
Engineering Society (0.1 fc measured 10 feet from the property line on the adjacent
property). Such barrier(s) shall have an aggregate opacity of at least 80 percent and be at
least as tall as the sidewalls of the proposed lighted greenhouses along their northwest
side.” Hinckley concluded that “[i]mplementation of MM AES-1.1 would reduce vertical
illumination on the adjacent property at 6650 Holsclaw Road by approximately
80 percent (reducing it to below the 0.1 fc threshold) and the resulting lighting impact
would be less than significant.”
The DEIR also concluded that the Shamrock Seeds project would have a less than
significant impact to historical resources, including the adjacent Edwin Willson Ranch.

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 B. The County’s Approval of the Shamrock Seeds Project
The County released the final EIR (FEIR) in February 2019 after the public review
period closed. The FEIR included the DEIR, public comments, and the County’s
responses to comments.
The County’s Board of Supervisors held a public hearing on the Shamrock Seeds
project on February 26, 2019. The Board of Supervisors thereafter adopted resolution
No. BOS-2019-35 certifying the EIR (the combined DEIR and FEIR) and approving the
Shamrock Seeds project. Additionally, as stated in the conditions of approval attached to
resolution No. BOS-2019-35, the Board of Supervisors approved the greenhouse lighting
plan evaluated in the EIR, conditioned upon implementing mitigation measure
MM AES-1.1 to reduce vertical illumination from the proposed greenhouses.
The Board of Supervisors also addressed, in resolution No. BOS-2019-35,
Patane’s public comments regarding greenhouse lighting. Patane submitted comments
along with a report by Patane’s lighting expert, Benya Burnett Consultancy (Benya),
which disagreed with Hinckley’s lighting analysis in the DEIR and concluded that the
Shamrock Seeds project violated CEQA with respect to greenhouse lighting.
Specifically, Benya stated that “ ‘[t]his Project will cause significant light and glare
adversely affecting nighttime views of the area that can only be mitigated by the nightly
use of a total black-out shading system completely enclosing every window or skylight
on each greenhouse that uses interior electric lighting at night.’ ”
The Board of Supervisors also noted Patane’s additional comment “that the
Project would cause a significant spillover of light from the parking lot and from lighted
greenhouses, resulting in an impact to [Patane’s] property.” The Board of Supervisors
responded that a qualified technical consultant, Michael Baker International, had
prepared a comprehensive lighting analysis that determined the only significant impact
from the proposed greenhouses was vertical illumination, which would be reduced to a
less than significant level by mitigation measure MM AES-1.1.

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 Further, the Board of Supervisors stated in resolution BOS-2019-35 that Patane
had “submitted additional information to the County on February 25, 2019, including a
response to the FEIR from a lighting consultant, a letter from an attorney regarding the
adequacy of the EIR, a memorandum on the feasibility of internal blackout curtains, and
photos of the project site relating to neighborhood character and the impacts of the
project. A supplemental memorandum prepared by the County’s lighting consultant,
Michael Baker International, dated April 2, 2019, which is attached to this resolution as
[e]xhibit 3, explains why the February 25, 2019 comments from Benya Burnett
Consultancy do not require any changes to the findings, mitigation measures, or
conditions related to the Project.”
C. Writ Proceedings
Patane filed a verified petition for a writ of mandate setting aside the County’s
approval of the Shamrock Seeds project. The petition named the County and the Board
of Supervisors as respondents, and Shamrock Seeds as the real party in interest carrying
out the project. Patane was identified as a resident of property on Holsclaw Road that is
adjacent to the project location.
In the writ petition, Patane raised claims of CEQA violations with regard to the
EIR’s analysis of the impact of the Shamrock Seeds project on aesthetics and historical
resources. As to aesthetics, Patane alleged that “[t]he Final EIR failed to adequately
disclose and discuss the Project’s impacts to aesthetics as a result of the night lighting for
the greenhouses. Additionally, the record demonstrates that the Project will result in
significant impacts associated with the lighting of the greenhouses and the Final EIR
failed to provide adequate and proper mitigation of those impacts. As part of the Final
EIR’s failure to address lighting and glare impacts, the EIR fails to adequately disclose,
discuss and mitigate the Project’s impacts associated with sky glow.” Patane also
asserted that the EIR had failed to adequately address and mitigate the project’s impact
on historic resources, specifically the Edwin Willson Ranch.

6
 After a court trial, the trial court issued its March 12, 2020 order denying the
petition for writ of mandate. The court determined that Patane had failed to meet the
burden, as the petitioner, to show that the EIR’s findings regarding the potential impacts
on aesthetics were not supported by substantial evidence, since the DEIR included the
lighting analysis by Michael Baker International and the FEIR included responses to
Patane’s comments, which qualified as reasonable assumptions and expert opinion based
on facts.
The court also determined that Patane’s “arguments on the aesthetics issue
ultimately present a disagreement between experts as to methodology and proper
measurement techniques rather than establishing a lack of substantial evidence for the
EIR’s conclusions. Having prepared an EIR, the County was allowed ‘to weigh the
evidence relating to the accuracy and sufficiency of the information in the EIR to decide
whether to accept it. The agency may defer to the environmental conclusions reached by
the experts that prepared the EIR even though others may disagree with the underlying
data, analysis, or conclusions.’ [Citations.]”
The trial court also rejected Patane’s historical resources CEQA claim, finding the
EIR’s conclusion of no significant impact on historical resources was supported by
substantial evidence. Judgment in respondents’ favor was filed on May 4, 2020.
III. DISCUSSION
On appeal, we understand Patane to contend that (1) the EIR’s conclusions
regarding the aesthetic impact of light emitted from the proposed greenhouses during
non-daylight hours, specifically sky glow on cloudy skies, are not supported by
substantial evidence; (2) the EIR’s mitigation measures for greenhouse lighting are
inadequate; and (3) the County’s response to comments by Benya, Patane’s lighting
expert, are inadequate. Patane does not raise any issues on appeal regarding the impact
on historical resources.

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 We will begin our evaluation of Patane’s contentions with the principles that guide
our review of CEQA issues.
A. Overview of CEQA Principles
The California Supreme Court has summarized the CEQA principles that govern
our review: “ ‘The foremost principle under CEQA is that the Legislature intended the
act “to be interpreted in such manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.” ’ [Citations.]
‘With narrow exceptions, CEQA requires an EIR whenever a public agency proposes to
approve or to carry out a project that may have a significant effect on the environment.
[Citations.]’ [Citation]; see Guidelines, § 15002, subd. (f).)[3] The basic purpose of an
EIR is to ‘provide public agencies and the public in general with detailed information
about the effect [that] a proposed project is likely to have on the environment; to list ways
in which the significant effects of such a project might be minimized; and to indicate
alternatives to such a project.’ (Pub. Resources Code, § 21061; see Guidelines, § 15003,
subds. (b)-(e).) ‘Because the EIR must be certified or rejected by public officials, it is a
document of accountability. If CEQA is scrupulously followed, the public will know the
basis on which its responsible officials either approve or reject environmentally
significant action, and the public, being duly informed, can respond accordingly to action
with which it disagrees.’ [Citation.] The EIR ‘protects not only the environment but also
informed self-government.’ [Citation.]” (Sierra Club v. County of Fresno (2018)
6 Cal.5th 502, 511-512, fn. omitted (Sierra Club).)
Thus, “[a]s this court has observed, ‘the overriding purpose of CEQA is to ensure
that agencies regulating activities that may affect the quality of the environment give

3
“The regulations that guide the application of CEQA are set forth in title 14 of
the California Code of Regulations and are often referred to as the CEQA Guidelines.
[Citation.]” (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552,
1561, fn. 5; hereafter CEQA Guidelines or Guidelines.)

8
primary consideration to preventing environmental damage. [Citation.]’ [Citation.]”
(Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141
Cal.App.4th 677, 687.)
B. Standard of Review
“In a CEQA case, the appellate court’s review ‘is the same as the trial court’s:
[It] reviews the agency’s action, not the trial court’s decision; in that sense appellate
judicial review under CEQA is de novo.’ [Citation.]” (Protecting Our Water and
Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495 (Protecting
Our Water).)
Accordingly, “[t]he reviewing court independently determines whether the record
‘demonstrates any legal error’ by the agency and deferentially considers whether the
record ‘contains substantial evidence to support [the agency’s] factual determinations.’
[Citation.]” (Protecting Our Water, supra, 10 Cal.5th at p. 495.) “ ‘Substantial evidence
challenges are resolved much as substantial evidence claims in any other setting: a
reviewing court will resolve reasonable doubts in favor of the administrative decision,
and will not set aside an agency’s determination on the ground that the opposite
conclusion would have been equally or more reasonable. [Citations.]’ ” (Sierra Club,
supra, 6 Cal.5th at p. 515.) “If the agency’s determination ‘involves pure questions of
law, we review those questions de novo.’ [Citation.]” (Protecting Our Water, supra, at
p. 495.)
“ ‘Where an EIR is challenged as being legally inadequate, a court presumes a
public agency’s decision to certify the EIR is correct, thereby imposing on a party
challenging it the burden of establishing otherwise.’ [Citation.]” (California Native
Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 987.)
C. Aesthetic Impact under CEQA
Public Resources Code section 21001, subdivision (b) provides in part that “[t]he
Legislature further finds and declares that it is the policy of the state to: [¶] . . . [¶] Take

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all action necessary to provide the people of this state with . . . enjoyment of aesthetic,
natural, scenic, and historic environmental qualities[.]” (Italics added.) Accordingly, it
has been recognized that “aesthetic issues are properly studied under CEQA . . . .”
(Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 577; see also Protect
Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, 1141 [CEQA defines
“ ‘ “environment” ’ to include ‘objects of historic or aesthetic significance’ ”].)
Consideration of aesthetic issues under CEQA includes the environmental impact
of light and glare caused by a project. (See, e.g., Taxpayers for Accountable School Bond
Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1038
[no substantial evidence that lighting for football stadium might have a significant impact
on environment due to glare or sky glow].) Appendix G to the CEQA Guidelines
provides an environmental impact checklist that requires the lead agency to consider
whether the proposed project would “ ‘[c]reate a new source of substantial light or glare
which would adversely affect day or nighttime views in the area[.]’ [Citation.]” (Ocean
View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th
396, 401.)
D. Analysis
1. Impact of Sky Glow on Cloudy Skies
Patane argues that the EIR’s conclusion that the light emitted from the proposed
greenhouses will cause a less than significant aesthetic impact from sky glow on cloudy
skies is not supported by substantial evidence. The basis for Patane’s argument is the
opinion of Benya, Patane’s lighting expert, that the County’s lighting expert, Hinckley,
improperly relied on a model for calculating the impact of manmade sky glow developed
by Dr. Roy Garstang (the AGI32 model) that does not address cloudy night skies because
the model was designed to assess the impact of sky glow on astronomy.
The County responds that its expert, Hinckley, used a calculation grid to determine
that the amount of greenhouse illumination at typical cloud height would not exceed the

10
threshold of significance, and therefore the EIR’s conclusions regarding sky glow are
supported by substantial evidence. The County also argues that the disagreement
between the parties’ experts with regard to the impact of sky glow does not render the
EIR inadequate due to lack of substantial evidence. We agree.
Under CEQA, “ ‘substantial evidence’ is ‘enough relevant information and
reasonable inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached. . . . Argument,
speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or
inaccurate . . . does not constitute substantial evidence.’ (Guidelines, § 15384,
subd. (a).)” (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140
Cal.App.4th 911, 918.) “ ‘Substantial evidence shall include facts, reasonable
assumptions predicated upon facts, and expert opinion supported by facts.’ (Guidelines,
§ 15384, subds. (a) & (b).)” (Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467, 540.)
Here, Patane asserts that the EIR’s conclusion regarding the impact of sky glow is
not supported by substantial evidence because that “Mr. Hinckley made approximate
calculations using the wrong model, looked at the Project and Project location and then
offered his opinion that the impacts [on sky glow on cloudy skies] were not significant
based upon his experience and expertise.” According to Patane, Benya correctly
determined that the impact of sky glow on cloudy skies should be measured by other
methods that would show a significant impact, including “readings from an adjacent site
[that] could be used and scaled relative to the size of the greenhouse and amount of light,
and measurements taken on the ground in a grid about the size of the Shamrock Seeds
facility and its neighbors.”
We need not determine whether Hinckley used the correct methodology to assess
the impact of sky glow on cloudy skies and reached a valid conclusion. “ ‘The court does
not have the duty of passing on the validity of the conclusions expressed in the EIR, but

11
only on the sufficiency of the report as an informative document.’ [Citation.] It is also
well established that ‘[disagreement] among experts does not make an EIR inadequate.’
[Citation.]” (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 409 (Laurel Heights).)
Regarding expert disagreement in CEQA cases, the decision in Chico Advocates
for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839 (Chico
Advocates) is instructive. In that case, the EIR analyzed a proposal to expand an existing
Walmart store and concluded that the potential economic impacts of the expansion would
not be sufficient to cause urban decay. (Id. at p. 844) On appeal, the project opponents
argued that there were flaws in the methodology and underlying data used in the EIR’s
urban decay analysis. (Id. at p. 851.)
The appellate court in Chico Advocates determined that the project opponents’
arguments failed to show that the EIR’s urban decay analysis was not supported by
substantial evidence. (Chico Advocates, supra, 40 Cal.App.5th at p. 852.) The court
stated that “challenges to the scope of an EIR’s analysis, the methodology used, or the
reliability or accuracy of the data underlying an analysis, must be rejected unless the
agency’s reasons for proceeding as it did are clearly inadequate or unsupported.
[Citation.] The issue for us is ‘ “not whether the studies are irrefutable or whether they
could have been better. The relevant issue is only whether the studies are sufficiently
credible to be considered as part of the total evidence that supports the [agency’s]
finding[s] . . . . ” [Citation.]’ [Citation.]” (Id. at p. 851.)
The Chico Advocates court concluded that “we are not persuaded that the City’s
approach renders the analysis clearly inadequate or unsupported. The identified ‘flaws’
with the EIR’s methodology amount to nothing more than differences of opinion about
how the Project’s expected grocery sales should be estimated, how the Project’s market
area should be defined, and which competitors are most susceptible to impacts from the
Project. The choice of one approach over the other does not render the City’s EIR

12
unreliable.” (Chico Advocates, supra, 40 Cal.App.5th at p. 851-852; see also
Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1069
[the substantiality of evidence is not undermined by the parties’ differing expert
opinions]; (Association of Irritated Residents v. County of Madera (2003) 107
Cal.App.4th 1383, 1397 (Irritated Residents) [“When the evidence on an issue conflicts,
the decisionmaker is ‘permitted to give more weight to some of the evidence and to favor
the opinions and estimates of some of the experts over the others’ ”].)
We reach a similar result in the present case. The parties’ lighting experts have
different opinions as to the methodology and the underlying data that should be used to
calculate the aesthetic impact of the sky glow emitted from the proposed greenhouses on
cloudy skies. The County was permitted to favor the opinions and estimates of its
lighting expert over Patane’s expert. (See Irritated Residents, supra, 107 Cal.App.4th at
p. 1397.) Accordingly, we determine that Patane has not met the burden to show that the
EIR’s conclusion—that the impact of sky glow on cloudy skies from the Shamrock Seeds
greenhouse project will be less than significant—is not supported by substantial evidence.
2. Mitigation
Patane generally contends that the EIR does not contain mitigation measures that
are adequate for the prevention of light pollution on neighboring properties and sky glow.
More specifically, Patane contends that solid barrier mitigation measure MM AES-1.1
does not adequately mitigate the impact of the night lighting of the proposed
greenhouses. Patane also asserts that the EIR fails to address the feasibility of black out
curtains as a mitigation measure, as recommended by Benya, Patane’s lighting expert, to
prevent sky glow and other light pollution. Additionally, Patane argues that the
ordinances of other jurisdictions regulating greenhouse lighting show that many counties
“require minimizing the emission of artificial night-time light in order to mitigate the
impacts from the artificial night-time light.”

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 The County responds that black out curtains are not a feasible mitigation measure
because, as stated by a representative of Shamrock Seeds, black out curtains are not used
in the vegetable seed industry due to curtains holding seed contaminants such as fungus,
mold, and pollen. The County also emphasizes that its expert, Hinckley, concluded that
that the impact of nighttime light from the proposed greenhouses would be less than
significant, with the exception of vertical illumination that would be mitigated to a less
than significant impact by the solid barriers specified in mitigation measure MM AES-
1.1. As to Patane’s argument regarding the greenhouse ordinances of other jurisdictions,
the County asserts that the EIR’s “site-specific findings were not required to be consistent
with general ordinances in other jurisdictions.”
We are not convinced by Patane’s arguments challenging the EIR’s adequacy with
respect to mitigation. To begin with, under the CEQA Guidelines “EIR’s are to identify
feasible mitigation measures for each significant impact. (Guidelines, §§ 15121,
subd. (a), 15126.4, subd. (a).)” (Clover Valley Foundation v. City of Rocklin (2011) 197
Cal.App.4th 200, 244.) Therefore, “[m]tigation measures are not required for effects
which are not found to be significant.” (Guidelines, § 5126.4, subd. (a)(3).
The EIR found, based on Hinckley’s expert opinion as stated in his technical
memorandum, that the impact of horizontal illumination, uplight and sky glow, and glare
from the proposed greenhouses would be less than significant. As a result, under the
Guidelines the EIR was not required to include mitigation measures for those
insignificant impacts. (Guidelines, § 5126.4, subd. (a)(3).)
However, Hinckley determined that although the impact of vertical illumination
from the proposed greenhouses would be significant, the solid barriers specified in
mitigation measure MM AES-1.1 would reduce the impact of vertical illumination to a
less than significant level. The different opinion of Patane’s expert—that the impact of
nighttime light from the proposed greenhouses should be mitigated by black out
curtains—does not render the EIR inadequate. The California Supreme Court has

14
instructed that “[a] court may not set aside an agency’s approval of an EIR on the ground
that an opposite conclusion would have been equally or more reasonable. [Citation.]
A court’s task is not to weigh conflicting evidence and determine who has the better
argument when the dispute is whether adverse effects have been mitigated or could be
better mitigated. We have neither the resources nor scientific expertise to engage in such
analysis, even if the statutorily prescribed standard of review permitted us to do so.”
(Laurel Heights, supra, 47 Cal.3d at p. 393.)
Finally, we observe that Patane has not provided any authority for the proposition
that the ordinances of other jurisdictions regulating greenhouse lighting are relevant with
regard to the adequacy of an EIR’s mitigation measures for a specific greenhouse project.
3. Response to Comments
Patane contends that the FEIR did not adequately address the comments made by
Benya, Patane’s lighting expert, that Patane submitted during the public review and
comment period4 on the DEIR and on February 25, 2019, the day before the Board of
Supervisors held the public hearing on the Shamrock Seeds project and certified the
FEIR. Patane also contends Hinckley’s memorandum responding to Benya’s
February 25, 2019 comments was improperly attached as [e]xhibit 3 to resolution
No. BOS-2019-35 and not to the FEIR.
According to the County, the FEIR included a thorough summary of and responses
to Benya’s comments on the project’s lighting impacts, and Hinckley’s subsequent
technical memorandum attached as exhibit 3 to resolution No. BOS-2019-35 responded
to Benya’s post-FEIR comments.

4
“The review period must be at least 30 days, after which the lead agency must
prepare written responses to the public comments and incorporate those responses and
comments into an FEIR. (Pub. Resources Code, §§ 21091, subd. (d)(2), 21104, 21153;
Guidelines, § 15088.)” (Washoe Meadows Community v. Department of Parks &
Recreation (2017) 17 Cal.App.5th 277, 286.)

15
 The California Supreme Court has instructed that “ ‘[d]isagreement among experts
does not make an EIR inadequate, but the EIR should summarize the main points of
disagreement among the experts.’ (Guidelines, § 15151.) ‘[M]ajor environmental issues
raised when the lead agency’s position is at variance with recommendations and
objections raised in the comments must be addressed in detail.’ (Guidelines, § 15088,
subd. (c).)” (Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th
918, 940 (Banning Ranch).)
Having reviewed the EIR, we find that the EIR met the standard for an agency’s
response to expert comments. Beginning with comment E.7, the EIR provides a
summary of Benya’s opinions regarding CEQA aesthetic violations and the deficiencies
in Hinckley’s analysis of the proposed greenhouse lighting. Noting that the EIR’s
response to comment E.7 is an introductory response, the EIR goes on to further respond
to Benya’s comments E.11 through E.16 in detail, including a detailed summary of
Benya’s report (comment E.11), and detailed responses to each of Benya’s comments,
including the comments on sky glow (comment E.12), impact of lighting on birds
(comment E.13), conflation of physics concepts (comment E.14), need for a blackout
shading system (comment E.15), and a summary of Benya’s conclusions (comment
E.16). The EIR’s responses to Benya’s comments explained in detail the County’s
acceptance of Hinckley’s expert lighting analysis rather than Benya’s expert opinions and
conclusions, thereby satisfying the requirement of Guideline section 15088,
subdivision (c). (See Banning Ranch, supra, 2 Cal.5th at p. 940.)
Moreover, where, as here, the project opponent’s comments on the EIR are
submitted on the eve of the agency’s public hearing, “CEQA does not require an agency
to respond to comments that are received after close of the designated public review
period. [Citations]; Guidelines, § 15207.” (Chico Advocates, supra, 40 Cal.App.5th at
pp. 851-852, fn. 9.) “Although the lead agency need not respond to late comments, the
lead agency may choose to respond to them.” (Guidelines, § 15207.)

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 In this case, the Board of Supervisors in resolution No. BOS-2019-35 chose to
respond, stating that Patane had submitted comments by Benya on the FEIR on
February 25, 2019, the day before the Board’s February 26, 2019 public hearing on the
Shamrock Seeds project. The Board of Supervisors responded by attaching a
supplemental memorandum by Hinckley dated April 2, 2019, to resolution No.
BOS-2019-35, which the Board relied on in stating that Benya’s February 25, 2019
comments did not require any changes to “the findings, mitigation measures, or
conditions related to the Project.”
For these reasons, we determine that Patane has not met the burden to show that
the EIR’s response to expert comments was inadequate. Patane’s reliance on the decision
in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal.4th 412 (Vineyard) for a contrary conclusion is misplaced.
In Vineyard our Supreme Court stated: “ ‘[I]nformation “scattered here and there
in EIR appendices” or a report “buried in an appendix,” is not a substitute for “a good
faith reasoned analysis . . . .’ ” [Citations.] To the extent the County [of Sacramento], in
certifying the FEIR as complete, relied on information not actually incorporated or
described and referenced in the FEIR, it failed to proceed in the manner provided in
CEQA.” (Vineyard, supra, 40 Cal.4th at p. 442.)
In contrast, as we have discussed, in the present case the County provided in the
EIR a detailed summary of the opinions of Patane’s lighting expert, Benya, that were
submitted with Patane’s comments, as well as the detailed responses of the County’s
lighting expert, Hinckley, based on Hinckley’s technical memorandum attached to the
DEIR. Therefore, unlike the facts in Vineyard, the record reflects that the County did not
rely on information not incorporated or described or referenced in the FEIR in certifying
the FEIR.

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IV. DISPOSITION
The May 4, 2020 judgment is affirmed. Costs on appeal are awarded to
respondents.

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 _________________________________
ELIA, ACTING P.J.

WE CONCUR:

_______________________________
BAMATTRE-MANOUKIAN, J.

_______________________________
DANNER, J.

Patane v. County of Santa Clara et al.
H048133