City of Santa Monica v. City of Los Angeles

Filed 9/13/07 City of Santa Monica v. City of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from a judgment of the Superior Court of Los Angeles County, William F. Highberger, Judge. Reversed with directions.

Marsha Jones Moutrie, Santa Monica City Attorney, and Joseph Lawrence, Assistant City Attorney, for Plaintiff and Appellant City of Santa Monica.

Law Offices of Sabrina Venskus and Sabrina Venskus for Plaintiffs and Appellants Ballona Wetlands Land Trust, Anthony Morales and Surfrider Foundation.

Law Offices of Brian Acree and Brian Acree for Plaintiff and Appellant Ballona Ecosystem Education Project.

Rockard J. Delgadillo, Los Angeles City Attorney, Susan D. Pfann, Assistant City Attorney, and Mary J. Decker, Deputy City Attorney, for Defendants and Respondents.

Latham & Watkins, Robert D. Crockett, Damon P. Mamalakis and Courtney E. Vaudreuil for Real Party in Interest and Respondent.

_____________________________________________

City of Santa Monica, Ballona Wetlands Land Trust, Anthony Morales, and Surfrider Foundation (collectively Petitioners) and Ballona Ecosystem Education Project (BEEP) challenge the certification by City of Los Angeles (City) of an environmental impact report (EIR) and the Citys approval of phase two of the Playa Vista development project. They appeal a judgment denying their petitions for writ of mandate in two consolidated cases. Petitioners challenge the adequacy of the EIR and the Citys findings under the California Environmental Quality Act (CEQA) (Pub. Resources Code,  21000 et seq.) with respect to historical archaeological resources, methane gas, wastewater, transportation, and alternatives to the project. BEEP challenges the adequacy of the EIR as to its project description and also challenges the EIR and the Citys findings with respect to land use, transportation, project alternatives, and the statement of overriding conditions. We conclude that the EIR was deficient in its analysis of land use impacts, mitigation of impacts on historical archaeological resources, and wastewater impacts. We therefore reverse the judgment with directions to the superior court to issue a peremptory writ of mandate ordering the City to vacate its certification of the EIR and its project approvals and make appropriate revisions to the EIR.

FACTUAL AND PROCEDURAL BACKGROUND

1. Playa Vista Development Site and Phase One

The Playa Vista development site is located in the City of Los Angeles generally south of Ballona Creek, east of Lincoln Boulevard, west of Interstate 405, and north of the Westchester bluffs. The Playa Vista development was approved in two phases. The previously approved phase one occupies primarily the eastern and western portions of the larger site, while the phase two site occupies primarily the central portion of the larger site and is surrounded on the east and west by phase one. Before the approval of phase two, the specific plan governing the entire Playa Vista site allowed the development of 3,246 residential units, 2,950,000 square feet of office and light industrial use (M(PV) and M2(PV)), 2,050,000 square feet of regional mixed commercial use (C2(PV)), 650,000 square feet of retail use and commercial use for mixed use developments, and 600 hotel rooms, all in an area known as Area D. The specific plan zoning restricted the uses on the phase two site, which lies entirely within Area D, to only residential and office/light industrial.[1]

The City certified an EIR for phase one in September 1993 and certified an EIR addendum in December 1995. The City approved the development of 3,426 residential units, 2,841,950[2]square feet of office and light industrial space, 400,000 square feet of regional mixed commercial space, and 35,000 square feet of retail space, all in Area D, in phase one. The total area of the phase one development is approximately 363 acres, including a freshwater marsh west of Lincoln Boulevard and other public open space. After the approval of phase one, as amended, the specific plan and zoning allowed the development of only 108,050 square feet of office and light industrial use (M(PV)) on the phase two site.

2. Phase Two Draft EIR

Playa Capital, as the owner, proposed the development of Playa Vista phase two, known as the Village at Playa Vista, consisting of 2,600 residential units, 175,000 square feet of office space, 150,000 square feet of retail space, and 40,000 square feet of community-serving uses. Phase two also includes the construction of a riparian corridor, including native vegetation, traversing the site from east to west and the restoration of portions of the Westchester bluffs. The riparian corridor would connect with sections previously constructed on the phase one site to the east and west of phase two and would drain into a freshwater marsh constructed on the phase one site.

The City circulated a draft EIR for the phase two project in August 2003. The City extended the period for public review and comments from 60 days to 120 days, ending on December 22, 2003.

3. Final EIR, Public Hearings, and Project Approval

The City completed a final EIR for the phase two project in April 2004. The Citys deputy advisory agency, planning commission, and planning and land use committee conducted public hearings on and recommended approval of the project. The City of Los Angeles City Council (City Council) at its meeting on September 22, 2004, considered the approval of a vesting tentative map, adoption of a resolution amending the general plan, adoption of ordinances amending the specific plan, and adoption of an ordinance authorizing a development agreement and heard comments by members of the public. At the conclusion of the hearing, the City Council approved the vesting tentative map providing for the subdivision of the phase two project site, adopted the resolution amending the general plan, certified the EIR, adopted CEQA findings and a statement of overriding considerations, and made other findings. The City Council also voted to adopt ordinances amending the specific plan and an ordinance authorizing a development agreement, but because the vote was not unanimous the ordinances were not adopted at that time and the City Council, pursuant to its procedural rules, scheduled another vote on the ordinances for the following week.

At its meeting on September 29, 2004, the City Council unanimously adopted the ordinances amending the specific plan and authorizing the development agreement. The City Council also certified the EIR and adopted the same CEQA findings and statement of overriding considerations at that time, and made other findings.

4. Trial Court Proceedings

Petitioners filed a petition for writ of mandate against the City in the superior court in November 2004 challenging its certification of the EIR and approval of the phase two project (Super. Ct. L.A. County, No. BS093502). Federation of Hillside and Canyon Associations, BEEP, and others filed a separate petition for writ of mandate against the City and the City Council in November 2004 challenging the certification of the EIR and approval of the project (Super. Ct. L.A. County, No. BS093507). The court consolidated the two proceedings. After a hearing on the merits in August 2005, the superior court issued a tentative decision denying the petitions. The court adopted the tentative decision as its statement of decision and entered a judgment denying the petitions in January 2006.

Petitioners and BEEP separately appealed the judgment. We have consolidated the two appeals.

CONTENTIONS

Petitioners contend (1) the EIR was required to discuss preservation in place as a means to mitigate significant impacts on historical archaeological resources, but failed to do so; (2) the evidence does not support the Citys finding that the mitigated impact on historical archaeological resources will be less than significant; (3) the EIR improperly failed to discuss a proposed alternative that would relocate or redesign the riparian corridor to avoid disturbing historical archaeological resources; (4) the Citys responses to comments concerning historical archaeological resources were inadequate; (5) the City was required to revise and recirculate the EIR to include significant new information discovered during the public review period concerning the extent of Native American burial sites on the phase one property, but failed to do so; (6) the City never seriously considered recommendations by the Native American Heritage Commission (NAHC) concerning historical archaeological resources and therefore failed to consult with NAHC as required; (7) the City improperly delegated its responsibility under the general plan to protect historical archaeological resources to other public agencies, and the EIR failed to discuss this inconsistency with the general plan, as required; (8) the methane gas testing was clearly inadequate, the responses to comments so stating were inadequate, and the EIR improperly deferred further testing and the determination of appropriate mitigation measures until after project approval; (9) the EIR was affirmatively misleading and failed to reveal important information that cast doubt on the efficacy of the methane testing; (10) the EIR should have disclosed the available data concerning the efficacy of the phase one mitigation measures, the failure to disclose that information rendered the EIR inadequate, and the Citys responses to comments requesting that information were inadequate; (11) the evidence does not support the Citys finding that mitigation will reduce the methane gas impacts to an insignificant level; (12) the EIR improperly failed to acknowledge that the project would necessitate expansion of the Citys wastewater treatment system and failed to analyze environmental impacts that will result from that expansion; (13) the EIR failed to identify and analyze a significant wastewater impact mandated by the Citys own threshold of significance; (14) the EIR improperly failed to analyze environmental impacts to the Santa Monica Bay as cumulative impacts resulting in part from the projects wastewater discharge; (15) the EIR failed to adequately analyze the environmental benefits of a no project alternative, including benefits that would result from use of the site as a treatment wetlands, and failed to adequately respond to a comment requesting further analysis; (16) the traffic analysis in the EIR was faulty, misleading, and was not supported by the available data; (17) the City failed to adequately respond to comments by Caltrans critical of outdated data cited in the EIR; (18) the EIR failed to adequately analyze impacts on public bus lines serving the project; (19) the City failed to apply Santa Monicas methodology for analyzing impacts on secondary streets in Santa Monica and instead applied the Citys more lax methodology, resulting in undercounting and a deficient analysis; (20) the analysis of traffic impacts on secondary streets in Los Angeles was faulty and misleading; and (21) activity on the project should be stayed until the City certifies a valid EIR in accordance with CEQA.

BEEP contends (1) the project description in the EIR was misleading because it failed to disclose that the project required zoning changes that would dramatically increase the amount of development permissible on the phase two site; (2) there is no provision for adequate funding of the additional Culver City buses to be provided in connection with the project, so there is no substantial evidence to support a finding that the mitigation measure is feasible or enforceable and no evidence to support the Citys finding that traffic impacts will be mitigated to an insignificant level; (3) the City failed to determine whether condition 116 of the phase one project approval was satisfied before approving the phase two project, contrary to the terms of the condition; (4) the analysis of a no project alternative in the EIR was misleading because it falsely stated that the remediation of soil and groundwater contamination at the site would not continue if there were no project; (5) the analysis of a second no project alternative in the EIR was misleading as to traffic impacts because it stated, contrary to Playa Capitals own traffic study, that development under the then-existing entitlements would result in significant traffic impacts; (6) the analysis of the second no project alternative in the EIR was misleading as to solid waste impacts because it characterized both the impacts of the alternative and the vastly greater impacts of the project as significant and because it failed to account for recycling as mitigation; (7) the statement of overriding considerations failed to explain in sufficient detail the Citys balancing of competing benefits and impacts of the phase two project; and (8) activity on the project should be stayed until the City complies with CEQA.

DISCUSSION

1. CEQA Requirements

CEQA is a comprehensive scheme designed to provide long-term protection to the environment. [Citation.] In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. [Citations.] CEQA is to be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. [Citation.] (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.)

An EIR is required for any project that a public agency proposes to carry out or approve that may have a significant effect on the environment. (Pub. Resources Code,  21100, subd. (a), 21151, subd. (a); Guidelines, 15064,[3]subd. (a)(1).) An EIR must describe the proposed project and its environmental setting, state the objectives sought to be achieved, identify and analyze the significant effects on the environment, state how those impacts can be mitigated or avoided, and identify and analyze alternatives to the project, among other requirements. (Pub. Resources Code, 21100, subd. (b), 21151; Guidelines, 15124, 15125, 15126.6.) The purpose of an environmental impact report is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project. (Pub. Resources Code,  21061.)

The lead agency must notify the public of the draft EIR, make the draft EIR and all documents referenced in it available for public review, and respond to comments that raise significant environmental issues. (Pub. Resources Code, 21092, 21091, subds. (a), (d); Guidelines, 15087, 15088.) The agency also must consult with and obtain comments from other agencies affected by the project and respond to their comments. (Pub. Resources Code, 21092.5, 21104, 21153; Guidelines, 15086.) The agency must prepare a final EIR including any revisions to the draft EIR, comments received from the public and from other agencies, and responses to comments. (Guidelines, 15089, subd. (a), 15132.)

An agency may not approve a project that will have significant environmental effects if there are feasible alternatives or feasible mitigation measures that would substantially lessen those effects.[4] (Pub. Resources Code, 21002, 21002.1, subd. (b); Guidelines,  15021, subd (a)(2); Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 134.) An agency may find, however, that particular economic, social, or other considerations make the alternatives and mitigation measures infeasible and that particular project benefits outweigh the adverse environmental effects. (Pub. Resources Code,  21081, subds. (a)(3), (b); Guidelines, 15091, subd. (a)(3).) Specifically, an agency cannot approve a project that will have significant environmental effects unless it finds as to each significant effect, based on substantial evidence in the administrative record, that (1) mitigation measures required in or incorporated into the project will avoid or substantially lessen the significant effect; (2) those measures are within the jurisdiction of another public agency and have been adopted, or can and should be adopted, by that agency; or (3) specific economic, legal, social, technological, or other considerations make the mitigation measures or alternatives identified in the EIR infeasible, and specific overriding economic, legal, social, technological, or other benefits outweigh the significant environmental effects. (Pub. Resources Code,  21081, 21081.5; Guidelines,  15091, subds. (a), (b).) A finding that specific overriding project benefits outweigh the significant environmental effects (Pub. Resources Code,  21081, subd. (b)) is known as a statement of overriding considerations. (Guidelines,  15093.)

Thus, a public agency is not required to favor environmental protection over other considerations, but it must disclose and carefully consider the environmental consequences of its actions, mitigate or avoid adverse environmental effects if feasible, explain the reasons for its actions, and afford the public and other affected agencies an opportunity to participate meaningfully in the environmental review process. The purpose of these requirements is to ensure that public officials and the public are aware of the environmental consequences of decisions before they are made. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (Goleta Valley).) The EIR process also informs the public of the basis for environmentally significant decisions by public officials and thereby promotes accountability and informed self‑government. (Laurel Heights I, supra, 47 Cal.3d at p. 392; Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935-936.) Before approving the project, the agency must certify that its decisionmaking body reviewed and considered the information contained in the EIR, that the EIR reflects the agencys independent judgment and analysis, and that the EIR was completed in compliance with CEQA. (Pub. Resources Code, 21082.1, subd. (c); Guidelines,  15090.)

We have repeatedly recognized that the EIR is the heart of CEQA. [Citations.] Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR protects not only the environment but also informed self-government. [Citations.] To this end, public participation is an essential part of the CEQA process. [Citations.] (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 (Laurel Heights II).)

 Significant effect on the environment means a substantial, or potentially substantial, adverse change in the environment. (Pub. Resources Code,  21068.) The Guidelines define significant effect on the environment in relevant part as a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.[5] (Guidelines,  15382.)

Substantial evidence under CEQA includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. (Pub. Resources Code,  21080, subd. (e)(1); see Guidelines, 15384, subd. (b), 15064, subd. (f)(5).) The Guidelines define substantial evidence as 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, and state that this determination must be made by examining the whole record before the lead agency. (Guidelines,  15384, subd. (a).) Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment. (Pub. Resources Code, 21080, subd. (e)(2); accord, id. 21082.2, subd. (c); see also Guidelines, 15384, subd. (a).)

2. Standard of Review

The standard of review of an agencys decision under CEQA is abuse of discretion. Abuse of discretion means the agency failed to proceed in a manner required by law or there was no substantial evidence to support its decision. (Pub. Resources Code,  21168, 21168.5; County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945.) Whether the agency failed to proceed in a manner required by law is a question of law. A court determines de novo whether the agency complied with CEQAs procedural requirements,  scrupulously enforc[ing] all legislatively mandated CEQA requirements (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 [276 Cal.Rptr. 410, 801 P.2d 1161]). (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova(2007) 40 Cal.4th 412, 435 (Vineyard Area Citizens).) The failure to provide information required by CEQA in an EIR is a failure to proceed in a manner required by law. (Save Our Peninsula Committee v. MontereyCountyBd. of Supervisors (2001) 87 Cal.App.4th 99, 118.) The failure to comply with CEQAs procedural or information disclosure requirements is a prejudicial abuse of discretion if the decision makers or the public is deprived of information necessary to make a meaningful assessment of the environmental impacts. (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236-1237; County of Amador, supra, at p. 946; see Pub. Resources Code,  21005.)

Findings of fact made by the agency and factual conclusions stated in an EIR are reviewed under the substantial evidence standard. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435; Laurel Heights I, supra, 47 Cal.3d at pp. 392-393, 407.) Under the substantial evidence standard, the court does not determine whether the agencys factual determinations were correct, but only determines whether they were supported by substantial evidence. (Laurel Heights I, supra, at pp. 392-393.) On appeal, we independently review the agencys decision under the same standard of review that governs the trial court. (Vineyard Area Citizens, supra, at p. 427.)

3. Land Use Impacts

a. Factual Background

The zoning designations in the specific plan governing Area D restricted uses on the phase two site to only residential (R4(PV)) and office and light industrial (M(PV)). The specific plan limited the total number of residential units in all of Area D to 3,246 and restricted office and light industrial uses in all of Area D to 2,950,000 square feet. After the approval of phase one, including the construction of 3,246 residential units and 2,841,950 square feet of office and light industrial space (in addition to 400,000 square feet of regional mixed commercial space and 35,000 square feet of retail space), the specific plan allowed no additional residential units in Area D, and only 108,050 square feet of office and light industrial space (2,950,000 2,841,950 = 108,050) could be built on the phase two site. Approval of the phase two development consisting of 2,600 residential units, 175,000 square feet of office space, 150,000 square feet of retail space, and 40,000 square feet of community-serving uses therefore required amendments to the specific plan to allow the additional development beyond only 108,050 square feet of office and light and industrial space. The proposed additional development was a large increase in the amount of development allowed on the phase two site.

b. CEQA Requirements

The purpose of an EIR is to inform the public and decision makers of the environmental consequences of public agencies decisions before they are made. (Laurel Heights II, supra, 6 Cal.4th at p. 1123.) An EIR   protects not only the environment but also informed self-government. [Citations.] To this end, public participation is an essential part of the CEQA process. [Citations.] (Ibid.) In determining whether an abuse of discretion is established,  The court does not pass upon the correctness of the EIRs environmental conclusions, but only upon its sufficiency as an informative document. [Citation.] (Laurel Heights I, supra, 47 Cal.3d at p. 392.) Technical perfection and an exhaustive analysis are not required, but an EIR must reflect a good faith effort at full disclosure. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712; accord, Guidelines,  15151.)

The preparation and circulation of an EIR is more than a set of technical hurdles for agencies and developers to overcome. The EIRs function is to ensure that government officials who decide to build or approve a project do so with a full understanding of the environmental consequences and, equally important, that the public is assured those consequences have been taken into account. (Laurel Heights I, supra, 47 Cal.3d at pp. 391-392.) For the EIR to serve these goals it must present information in such a manner that the foreseeable impacts of pursuing the project can actually be understood and weighed, and the public must be given an adequate opportunity to comment on that presentation before the decision to go forward is made. (Vineyard Area Citizens, supra, 40 Cal.4th at pp. 449-450.)

c. The Analysis of Land Use Impacts Was Misleading

The EIR included a 35-page project description section, including several pages of maps, tables, and figures. That section stated that the proposed project involved the construction of 2,600 residential units, 175,000 square feet of office space, 150,000 square feet of retail space, and 40,000 square feet of community-serving uses in addition to the construction of a riparian corridor and restoration of a portion of the bluffs. It stated further that the project would require amendments to the general and specific plans, including amendments to modify the land uses and densities currently allowed by and adjust the land use entitlement allowed in the specific plan. The project description did not state that the existing specific plan allowed the development of only 108,050 square feet of office and light industrial space on the phase two site and no other development, and did not disclose that the project would dramatically increase the amount of development allowed on the phase two site or that the amendments to modify and adjust the land use restrictions would increase the permissible development from only 108,050 square feet of office and light industrial space to 2,600 residential units, 175,000 square feet of office space, 150,000 square feet of retail space, and 40,000 square feet of community‑serving uses.

A subsection of the project description section discussed the history and evolution of the entire Playa Vista project. It stated that, compared with prior development proposals, The Proposed Project greatly reduces the scale of the Playa Vista development by limiting development to the remaining portion of Area D, on approximately 111 acres adjacent to the Playa Vista First Phase Project.[6] The project description did not acknowledge that the project would greatly increase the amount of development compared with the development permissible under the existing specific plan.

The executive summary section also stated that the project reduced the scale of development compared with prior proposals and, for the most part, failed to acknowledge that the project would dramatically increase the amount of development permissible on the phase two site. The second sentence of the executive summary stated, As described more fully in Section I.D., the Proposed Project greatly reduces the scale of development in comparison to previous proposals within the larger area known as Playa Vista.[7] The summary of the projects land use impacts stated that the proposed specific plan amendments would enable the Projects proposed development of housing uses in place of office, retail, and hotel uses allowed under the existing Specific Plan. That statement suggested that the amendments involved the substitution of additional residential units in the place of office, retail, and hotel uses that were then allowed on the phase two site. That statement was inaccurate because there was no substitution or exchange involved, but only an increase in the permissible area of office and light industrial uses (from 108,050 to 175,000 square feet), an increase in the number of residential units (from 0 to 2,600), and an increase in the area of retail space (from 0 to 150,000 square feet) and community-serving uses (from 0 to 40,000 square feet) over that which was then allowed on the phase two site. The statement apparently was based on the unstated assumption that the square footage of land uses allowed under the specific plan and not developed in phase one was available for development in phase two without regard to whether the phase two site was actually zoned for those uses. That assumption was untrue.[8]

The EIRs full analysis of the projects land use impacts graphically illustrated this misleading and unstated assumption. The analysis stated that table 85 showed the remaining development allowed under the existing Specific Plan, taking into account the previously approved development within the Playa Vista First Phase Project. Table 85, entitled Development Allowed Under Existing Playa Vista Area D Specific Plan, showed the area of office space,[9]number of residential units, area of retail space, and number of hotel rooms allowed in all of Area D under the specific plan (column one), the amounts of each included in the phase one development (column two), and the amounts Remaining (column three). As to each category, the amount Remaining was simply the difference between the number in column one and the number in column two, without regard to whether the specific plan allowed that land use on the phase two site. Considered together with the accompanying text, the table purported to show that the remaining development allowed on the phase two site under the specific plan included 1,758,050 square feet of office space, 615,000 square feet of retail uses, and 600 hotel rooms.[10] That was untrue.

Similarly, the analysis of land use impacts stated that table 88 compared development under the proposed phase two project with the development program that could occur under the Area D Specific Plan. Table 88, entitled Comparison of Area D Specific Plan Uses and Proposed Uses, included the information shown in table 85 and additional columns showing the amounts of each land use under the proposed phase two project (column four), the difference between those amounts and the amounts Remaining (column five), and a column labeled Maximum Permitted by Proposed Specific Plan (column six). The table appeared to show large decreases in the amounts of office space (reduced by 1,583,050 square feet), retail space (reduced by 465,000 square feet), and number of hotel rooms (reduced by 600 rooms) in the proposed project compared to the maximum amounts remaining for development on the phase two site under the specific plan. Neither the table nor the accompanying text disclosed that the only development actually permitted on the phase two site under the specific plan was 108,050 square feet of office and light industrial use.

Table 89 was entitled Land Use Implications of Proposed Development. It showed the same information as to the remaining amounts of development allowed under the specific plan, and stated that the proposed phase two project would result in an increase in the number of residential units allowed and a reduction of 1,583,050 square feet of office space, a reduction of 465,000 square feet of retail space, and a reduction of 600 hotel rooms from the amounts that could be developed on the phase two site under the specific plan: As additional housing is not permitted by the existing Area D Specific Plan, development of the proposed 2,600 housing units would require a Specific Plan Amendment. The Proposed Projects office, retail and community serving uses could be developed as proposed, pursuant to the provisions of the existing Specific Plan. However, the Applicant is proposing an amendment to the Area D Specific Plan to eliminate the office, retail and hotel uses that could occur beyond the development of the Proposed Project and previously approved Playa Vista First Phase Project. This would result in the following: a reduction of 1,583,050 sq. ft. of office space, a reduction of 465,000 sq. ft. of retail space, and a reduction of 600 hotel rooms. The exchange between housing uses in place of office, retail and hotel uses is offered in the context of an overall planning concept for the Proposed Project. (Italics added.) The italicized sentence was untrue because the office, retail, and community serving uses of the proposed phase two project could not be developed as proposed on the phase two site under the existing specific plan due to the plans zoning restrictions. The purported reductions were illusory because they were calculated based on office space, retail space, and hotel rooms that could not be developed on the phase two site under the existing specific plan.

Only the EIRs discussion of alternatives, and a brief summary of that discussion in the executive summary, disclosed that the phase two project represented an increase in the amount of development allowed on the phase two project site. The EIR discussed two no project alternatives (see Guidelines, 15126.6, subd. (e)), the first involving no development on the project site and the second involving development pursuant to the existing specific plan. The analysis of the second no project alternative stated that the only uses allowed on the phase two site under the existing zoning were office and light industrial (M(PV)) and residential (R4(PV)), that the phase one project included all of the residential units allowed in Area D under the specific plan and included 2,841,950 square feet of office and light industrial space, and that the only permissible development remaining for the phase two site was 108,050 square feet of office and light industrial uses.[11] Table 187 showed that, compared with the proposed project, the second no project alternative represented a decrease of 2,600 residential units, a decrease of 66,950 square feet of office and retail space, a decrease of 150,000 square feet of retail space, and a decrease of 40,000 square feet of community-serving space. One could discern from that analysis what the land use analysis in particular and the EIR as a whole never explicitly stated: that compared with the development allowed under the specific plan, the proposed project represented an increase of 2,600 residential units, an increase of 66,950 square feet of office and retail space, an increase of 150,000 square feet of retail space, and an increase of 40,000 square feet of community-serving space.

A comment to the draft EIR stated that the summary of the project description in the executive summary should state that the applicant is seeking an increase in entitlementsabout 20 times what the current zoning allows under the Specific Plan. The City responded: The statement in this comment regarding the increase in development density is not accurate. As compared to the existing amounts of development described in the Specific Plan, the Proposed Project would increase the amount of development for residential use by 2,600 units, but would also reduce the amount of development for retail uses by 465,000 sq. ft. (76 percent less than allowed under the current Specific Plan), and the amount of development for office uses by 1,583,050 sq. ft. (90 percent less than allowed under the current Specific Plan). . . . Also, 600 hotel rooms permitted under the Specific Plan would not be built (a 100% reduction). Thus, the City persisted in describing the project as a reduction in the amount of development allowed in theory in Area D as a whole rather than an increase in the amount of development actually allowed on the phase two site. Another comment and response were similar.

The Citys CEQA findings with respect to land use similarly stated that the specific plan amendments would allow the development of residential units in lieu of office, retail, and hotel uses allowed under the specific plan: The Specific Plan amendment and zone changes would enable the Projects proposed development of housing uses in place of office, retail, and hotel uses allowed under the existing Specific Plan. The exchange is offered in the context of the overall planning concept for the Proposed Project. The findings did not acknowledge that the amendments increased the amount of development allowed on the phase two project site and that there was no exchange.

We conclude that the land use analysis in the EIR was materially misleading with respect to the effect of the proposed specific plan amendments on the amount of development allowed on the phase two project site. Rather than decrease the amount of development permissible on the phase two site as the EIR consistently stated, the amendments dramatically increased the amount of development permissible on the phase two site. The EIR disclosed this important information only in the discussion of the second no project alternative and a brief summary of that discussion in the executive summary. Those brief references could not overcome the misleading comparisons of permissible development scenarios in the analysis of land use impacts and the absence of information elsewhere in the EIR as to the true effect of the proposed specific plan amendments. This created a substantial likelihood that the decision makers and the public would not fully appreciate the fact that the proposed project represented a substantial increase in the amount of permissible development on the phase two site, diverted attention away from the projects true impacts on land use, and impaired the environmental review process in that regard. We conclude that the EIR therefore was deficient as an informational document and that the City failed to proceed in a manner required by law. (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at pp. 717-718 [held that a misleading impact analysis based on erroneous information rendered an EIR insufficient as an informational document].) The City must revise the analysis of land use impacts in the EIR. (See section 10, post.)

Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350 involved a similar problem. The projects in that case were amendments to two area plans within a general plan. (Id. at p. 353.) The two EIRs repeatedly compared the impacts of the proposed amended plans with the impacts of full build out under the existing plans, rather than with the existing physical environment. (Id. at pp. 355-357.) Although the EIRs discussed some project impacts on the existing physical conditions, the court concluded that the repeated comparisons to the impacts assuming full build out under the existing area plans created illusory reductions in environmental impacts and rendered the EIRs misleading and inadequate as informational documents. (Id. at pp. 357-358.) The court stated, The comparisons utilized in the EIRs can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts which would result. (Id. at p. 358.)

BEEP characterizes this problem as a deficient project description. An incomplete or misleading project description can improperly curtail environmental review and the consideration of mitigation measures and project alternatives. Only through an accurate view of the project may affected outsiders and public decision‑makers balance the proposals benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal (i.e., the no project alternative) and weigh other alternatives in the balance. An accurate, stable, and finite project description is the sine qua non of an informative and legally sufficient EIR. (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192‑193.) Guidelines section 15124 states the requirements for a project description in an EIR, including, A list of permits and other approvals required to implement the project. (Id., subd. (d)(1)(B).) Guidelines section 15378 states that if the agency could describe the project as either the adoption of a regulation such as a general plan amendment (see id., subd. (a)(1)), or a development proposal that will be subject to governmental approvals such as permits, the agency shall describe the project as the development proposal for the purpose of environmental analysis. (Id., subd. (d).) We need not decide whether the project description for a development proposal that requires general and specific plan changes must describe in greater detail the required plan changes. Whether we regard the problem here as a deficient and inconsistent project description or an inadequate and misleading analysis of land use impacts, a revised analysis of land use impacts that accurately discloses the effect of the amendments on the amount of development allowed on the phase two site will correct the problem.

4. Impacts on Historical Archaeological Resources

a. Factual Background

The Ballona Lagoon Archaeological District was established in 1990 in areas in and around the phase two project site. The district was determined to be eligible for listing in the National Register of Historic Places. Each archaeological site within the district is evaluated to determine whether it is of sufficient importance to be designated a contributing element of the district. Two archaeological sites located at least in part within the phase two project site, known as CA-LAN-62 and CA-LAN-211/H, have been determined to be contributing elements of the district and eligible for listing in the National Register of Historic Places. The two sites contain intact cultural artifacts dating back over 3,500 years and animal and human remains.

The United States Army Corps of Engineers (Corps of Engineers), Advisory Council on Historic Preservation,[12]and state Office of Historic Preservation entered into a Programmatic Agreement concerning the entire Playa Vista project site in 1991. The then-owner of the site and three individuals of Gabrielino descent also signed the agreement under the word Concur.[13] The agreement stated that the parties agreed to a data recovery plan (also referred to as an Archaeological Treatment Plan) relating to portions of the project site as a means to take into account the effects of construction of that phase of the project on historic properties. The agreement stated further that a Research Design would guide the evaluation of [other potential] historic properties, that the Corps of Engineers and Office of Historic Preservation would evaluate [t]he effects on [other] eligible properties within the project site, and that Treatment Plans shall be developed based on these evaluations. The agreement stated that the treatment plans would be consistent with or take into account certain federal and state standards for archaeological research and documentation. The agreement stated that it would expire after 10 years and that the parties to the agreement shall reconsult to determine whether the terms of the agreement have been met, whether revisions are needed, and whether the Agreement should be extended, but it did not state how to extend the agreement. The Department of the Army in a letter dated October 30, 2001, stated that all parties to the agreement had participated in reconsultation and that We have concluded the process and we are hereby notifying all parties in writing that the PA has been extended until October 22, 2011.

The Research Design referenced in the Programmatic Agreement was the Playa Vista Archaeological and Historical Project: Research Design, a document drafted by an archaeological firm in 1991. The Research Design discussed the archaeological significance of the project site, the archaeological information collected to date, the impact of the proposed development on the archaeological sites, procedures to evaluate sites to determine their eligibility for listing in the National Register of Historic Places, and methods to extract artifacts and remains from eligible sites and to analyze data. The Research Design stated that after their analysis, human remains and associated artifacts will be reburied in a place and a manner acceptable to representatives of the Gabrielinos. The data recovery plan referenced in the Programmatic Agreement was a separate document. The data recovery plan provided for the removal of items of archaeological significance during the construction excavation work. The data recovery plan provided for monitoring of the riparian corridor excavation by an archaeologist and for the return of any burials encountered to a representative of the Gabrielinos for reburial.

b. CEQA Requirements

An EIR must identify and analyze the significant environmental effects that may result from the project (Pub. Resources Code,  21100, subds. (a), (b); Guidelines,  15126.2, subd. (a), 15143; Laurel Heights I, supra, 47 Cal.3d at p. 396 [an EIR must analyze effects that are a reasonably foreseeable consequence of the project]), including impacts on historical archaeological resources (Pub. Resources Code,  21084.1; Guidelines, 15064.5, subd. (c)). For each significant effect, the EIR must describe and discuss feasible mitigation measures that could minimize the effect. (Pub. Resources Code,  21100, subd. (b)(3); Guidelines,  15126.4, subd. (a).) The EIR should discuss both measures proposed by the project proponent and measures proposed by the lead agency or other persons that, if required as conditions of approving the project, could reduce the adverse impacts. (Guidelines, 15126.4, subd. (a)(1)(A).)

Where several measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified. Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way. (Guidelines, 15126.4, subd. (a)(1)(B).) If the lead agency determines that a mitigation measure cannot be legally imposed, the measure need not be proposed or analyzed. Instead, the EIR may simply reference that fact and briefly explain the reasons underlying the lead agencys determination. (Id., 15126.4, subd. (a)(5).) Similarly, if the lead agency rejects project alternatives because they are infeasible, the EIR should identify the rejected alternatives and briefly explain why they are infeasible. (Id., 15126.6, subd. (c); Laurel Heights I, supra, 47 Cal.3d at pp. 404‑405; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 737 (San Joaquin Raptor).)

Guidelines section 15126.4, subdivision (b)(3) states that preservation in place is the preferred manner to mitigate impacts on historic archaeological resources and that an EIR must discuss preservation in place:

Public agencies should, whenever feasible, seek to avoid damaging effects on any historical resource of an archaeological nature. The following factors shall be considered and discussed in an EIR for a project involving such an archeological site:

(A) Preservation in place is the preferred manner of mitigating impacts to archaeological sites. Preservation in place maintains the relationship between artifacts and the archaeological context. Preservation may also avoid conflict with religious or cultural values of groups associated with the site.

(B) Preservation in place may be accomplished by, but is not limited to, the following:

1. Planning construction to avoid archaeological sites;

2. Incorporation of sites within parks, greenspace, or other open space;

3. Covering the archaeological sites with a layer of chemically stable soil before building tennis courts, parking lots, or similar facilities on the site.

4. Deeding the site into a permanent conservation easement.

(C) When data recovery through excavation is the only feasible mitigation, a data recovery plan, which makes provision for adequately recovering the scientifically consequential information from and about the historical resource, shall be prepared and adopted prior to any excavation being undertaken. . . . (Italics added.)

c. The EIR and the Citys Findings

The EIR stated that two archaeological sites within the project site, CA-LAN-62 and CA-LAN-211/H, were determined to be eligible for listing in the National Register of Historic Places and therefore were historical archaeological resources under CEQA. The EIR stated that the Corps of Engineers, Advisory Council on Historic Preservation, and Office of Historic Preservation entered into the Programmatic Agreement in 1991 in connection with the granting of a federal permit to fill wetlands, that two local Native American groups of Gabrielino descent . . . signed the Programmatic Agreement, and that the agreement was extended through October 22, 2011. The EIR stated that pursuant to the agreement, the Corps of Engineers had developed Archaeological Treatment Plans for historic properties that would be adversely affected by the phase two project. It stated of the Research Design: The Research Design presents relevant research questions, provides current knowledge of the archaeological and historical resources, describes potential impacts to prehistoric sources, and outlines future steps to mitigate potential adverse impacts of the Proposed Project on these resources. It also stated that the Research Design develops a program for the mitigation of impacts on significant archaeological resources resulting from the proposed development. The EIR stated further that the author of the Research Design had prepared an update to that document in 2003 and that the update constitutes the Project specific Research Design and Treatment Plan for the Proposed Project.

The EIR stated that Playa Capital together with federal, state, and local public agencies had considered the impacts of the project element on cultural resources and had designed the phase two project to avoid disturbing sections of the significant archaeological sites along the bluffs. It stated further, The [riparian] corridor itself, however, cannot be placed in such a way as to avoid all portions of these archaeological sites and still function as a hydraulic feature. The EIR stated: For these reasons, the only feasible mitigation measure in those portions of the significant archaeological sites that will be adversely impacted by the riparian corridor is data recovery. The extent and nature of data recovery along with other mitigation measures for portions of the sites that will not be impacted by construction are set forth in the Research Design and Archaeological Treatment Plans for CA-LAN-62 and CA‑LAN-211/H. Based on the foregoing, the EIR stated that implementation of the data recovery plan would fully mitigate the potential significant effects on historical archaeological resources.

The EIR quoted Guidelines section 15126.4, subdivision (b)(3), quoted ante, but did not state whether a greater degree of preservation in place could be achieved if the riparian corridor were placed in a different location. Nor did it discuss any other potential means to achieve greater preservation in place in other portions of the development. The CEQA findings adopted by the City Council stated that construction activities could cause potentially significant effects to archaeological resources, but that implementation of the data recovery plan would mitigate those effects to an insignificant level.[14] The findings explained that the evaluation and treatment of any archaeological resources encountered would contribute to the body of historical knowledge, that the required protocols would avoid significant impacts from the disturbance, damage, or degradation of those resources, and that those measures and the presence of a representative of the Gabrielinos would reduce the potential impacts to an insignificant level.

d. The EIR Failed to Discuss Preservation in Place as Required

Petitioners contend the EIR was required to discuss preservation in place as a means to mitigate the significant effects on historical archaeological resources, but failed to do so. We agree. Guidelines section 15126.4, subdivision (b)(3) expresses a clear preference for preservation in place as the preferred manner to mitigate impacts on historical archaeological resources. To ensure that public agencies give adequate consideration to preservation in place as a mitigation measure, section 15126.4, subdivision (b)(3) expressly requires a discussion of preservation in place in the EIR. That discussion should acknowledge that preservation in place is preferred to other methods such as excavation because only preservation in place maintains the relationship between artifacts and the archaeological context and because preservation in place may also avoid conflict with religious or cultural values of groups associated with the site. (Id., subd. (b)(3)(A).) The discussion should describe potential means to accomplish preservation in place, including planning construction to avoid archaeological sites, incorporating the sites within parks or open space, covering the sites with chemically stable soil before building on top of the sites, and deeding the sites into a permanent conservation easement. (Id., subd. (b)(3)(B).) Only by including such a discussion in the EIR itself can the public agency ensure that the decision makers and the public give adequate consideration to both the benefits of preservation in place and potential measures to achieve that preferred goal.

The EIR here failed to discuss preservation in place as a means to mitigate impacts on archaeological resources, as required. It stated that Playa Capital together with federal, state, and local public agencies had considered the impacts of the project on cultural resources and had designed the project to avoid some archaeological resources, and that the riparian corridor could not be situated so as to avoid all archeological sites. The EIR, however, failed to discuss whether more archaeological resources could be preserved in place if the riparian corridor were redesigned to avoid the highest concentrations of archaeological resources or if other parts of the project were built at another location, or whether other measures might result in more preservation in place.[15] The EIR alluded to the consideration of impacts on archaeological resources that had taken place previously behind the scenes, but did not describe the mitigation measures considered and rejected or the reasons for rejecting those measures. The omission of that information from the EIR deprived the City Council and the public of important information