Sierra Club v. City of Orange

Filed 4/30/08 Sierra Club v. City of Orange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Stephen J. Sundvold, Judge. Request for judicial notice. Motion to strike portions of Appellants Reply Brief. Judgment affirmed. Request for judicial notice and motion to strike denied.

Law Offices of Frank P. Angel and Frank P. Angel for Plaintiff and Appellant.

David A. De Berry; Rutan & Tucker, Robert S. Bower and Jeffrey T. Melching for Defendants and Respondents.

Latham & Watkins, Christopher W. Garrett, Daniel P. Brunton and Ryan R. Waterman for Real Parties in Interest.

* * *

Plaintiff Sierra Club sued defendant City of Orange and its city council (defendant) for certifying a combined supplemental environmental impact report and environmental impact report (SEIR/EIR) and approving land use development proposals for projects sought by real parties in interest The Irvine Company LLC and Irvine Community Development LLC (collectively Irvine) on the ground defendants actions violated the California Environmental Quality Act (CEQA). (Pub. Resources Code,  21000 et seq.; all further statutory references are to the Public Resources Code unless otherwise indicated.) Although rejecting Irvines request to dismiss the action for failure to timely file it, the trial court entered judgment denying the petition. (Code Civ. Proc.,  1094.)

Plaintiff appeals, contending the SEIR/EIR violates CEQA by failing to: (1) Disclose the projects proposed annexation boundaries; (2) evaluate the environmental effects of the project as a whole; and (3) provide an adequate and complete analysis of the projects water quality impacts, traffic impacts, and potentially feasible project alternatives. Irvine repeats its claim this action is barred by the statute of limitations. While we reject Irvines statute of limitations claim, we nonetheless affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Background

The project covers over 6,800 acres of undeveloped land in an unincorporated portion of Orange County within defendants eastern sphere of influence. The proposed development within the project area is divided into four planned community parcels. The first is a 496-acre parcel named Santiago Hills II Planned Community (SH2PC), located westerly of State Route 241/261. The remainder of the project consists of a 6,300-plus-acre parcel named East Orange Planned Community (EOPC), the portion of which proposed for development is further subdivided into three sections, identified as EOPC Area 1 (EOPC1), EOPC Area 2 (EOPC2), and EOPC Area 3 (EOPC3). EOPC1 is east of State Route 241/261 and north of Santiago Canyon Road. EOPC2 is also north of Santiago Canyon Road easterly of EOPC1 and southeast of Irvine Lake. EOPC3 is located south of Santiago Canyon Road and southeast of EOPC2.

In the 1980s, after consultation with the County of Orange and Irvine, defendant certified a program-level EIR for the project area and adopted the East Orange General Plan. A supplemental project-level EIR (SEIR 1278) covering the SH2PC parcel was prepared and certified in 2000.

In the mid-1990s defendant and others, including the County of Orange, executed the Central Coastal Natural Communities Conservation Plan/Habitat Conservation Plan creating a habitat reserve covering over 37,000 acres that restricted residential, commercial, and industrial uses in the covered area. The project area falls within the boundaries of the conservation plan. Also, in 2001 Irvine added 11,000 acres to the Irvine Ranch Land Reserve, an area set aside in perpetuity as open space. A portion of this acreage covered land that had been previously designated for development in the East Orange General Plan.

In 2003, Irvine submitted a project application for a general plan amendment and other land use entitlements that would amend SEIR 1278 for SH2PC, plus affect the East Orange General Plan. On SH2PC, Irvine proposed to build over 1,700 residential units covering 384 acres with the remaining 112 acres as open space. Its EOPC1 proposal consisted of 1,100 residential units on 361 acres, leaving the remaining 69 acres as open space. On the 947-acre EOPC2 parcel, Irvine proposed to construct 1,200 residential units covering 599 acres, with an additional 212 acres dedicated to commercial development, and the remaining 136 acres as open space. Irvines proposed development for the 45-acre EOPC3 parcel consisted of 50 residential units. For the balance of EOPC, Irvine proposed 6 acres dedicated to commercial development, 12 acres to institutional development, 258 acres for State Route 241/261s right-of-way, and 4,040 acres of open space.

Defendant issued a notice of preparation for a project-level supplemental EIR for SH2PC covering substantial proposed changes to the previously approved SEIR 1278, a project-level EIR for EOPC1, and a more general program-level EIR covering EOPC2 and -3 (SEIR/EIR) in September 2003. The draft SEIR/EIR was circulated for comment in late 2004, with the final SEIR/EIR with comments and responses issued in May 2005.

Beginning in late September 2005, the city council held several public hearings on the SEIR/EIR. On November 8, it certified the SEIR/EIR, which included findings of facts and a statement of overriding considerations, approving a project alternative that eliminated the residential units on EOPC3. The council also adopted a general plan amendment, a runoff management plan (ROMP), urban design guidelines, tentative tract maps for the SH2PC and EOPC1 parcels, plus an affordable housing conditional use permit. Defendant issued a notice of determination concerning these approvals on November 9 which the county clerk posted the same day.

Because the November 9 notice contained an erroneous approval date, defendant issued and posted a second notice of determination on November 14, correctly stating the approval had occurred on November 8, and parenthetically explaining the previously filed notice contained an error. Defendant issued and posted another notice of determination on November 22 noting defendants subsequent approval of two pre-zoning changes and a pre-annexation development agreement with Irvine.

2. The Present Action

Plaintiff filed its petition on December 14. The first cause of action alleges the SEIR/EIR violated CEQA because it failed to: (1) Disclose the baseline physical conditions, particularly concerning the water quality for the project-affected creeks; (2) describe the project and its setting; (3) disclose the projects impacts and proposed mitigating measures; and (4) consider the project as a whole by breaking up the impacts analysis between SH2PC, EOPC1, and EOPC2 and -3. Plaintiff also alleges the SEIR/EIRs analysis of alternative projects was defective. The second count alleges: (1) The SEIR/EIRs certification and the projects approval were not supported by substantial evidence or legally adequate findings; and (2) defendants mitigation findings violated CEQA because they were based on an inadequate SEIR/EIR, deferred formulation of mitigation measures to the future, and included unenforceable measures. The third count seeks injunctive relief based on the foregoing alleged CEQA violations.

Defendant and Irvine answered the petition and defendant moved for judgment. Irvine joined in defendants motion and filed several other motions, plus a request for judicial notice. Among other contentions, Irvine asserted plaintiff failed to timely file its petition, and the petition raised arguments either not asserted during the administrative proceedings or based on evidence outside the administrative record. The trial court denied Irvines statute of limitations defense, but granted its other requests and defendants motion for judgment.

DISCUSSION

1. Standard of Review

Where an EIR is challenged as being legally inadequate, a court presumes a public agencys decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 723; Save Our Peninsula Committee v. MontereyCountyBd. of Supervisors (2001) 87 Cal.App.4th 99, 117.) To establish noncompliance by the public agency in a CEQA proceeding, an opponent must show there was a prejudicial abuse of discretion ( 21168.5), which occurs when either the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. (Ibid.; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.)

In Vineyard, the court recognized that [j]udicial review of these two types of error differs significantly . . . . (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.) Whether an agency has employed the correct procedures, is reviewed de novo . . . scrupulously enforc[ing] all legislativelymandated CEQA requirements [citation] . . . . (Ibid.) But an agencys substantive factual conclusions are accord[ed] greater deference. (Ibid.) In reviewing for substantial evidence, the reviewing court may not set aside an agencys approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable, for, on factual questions, our task is not to weigh conflicting evidence and determine who has the better argument. [Citation.] (Ibid.)

In a footnote, plaintiff suggests Vineyard clarifie[d] the applicability of the standards of appellate review by limiting substantial evidence analysis to factual disputes over whether adverse effects have been mitigated or could be better mitigated. This assertion is incorrect. Vineyard merely recites the now-familiar standards of judicial review in CEQA cases and declares that [i]n evaluating an EIR for CEQA compliance, then, a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.)

Finally, [a]n appellate courts review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial courts: the appellate court reviews the agencys action, not the trial courts decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] We therefore resolve the substantive CEQA issues . . . by independently determining whether the administrative record demonstrates any legal error by the [agency] and whether it contains substantial evidence to support the [agencys] factual determinations. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 427.)

2. Statute of Limitations

As noted, Irvine reasserts its statute of limitations claim in this appeal. (Code Civ. Proc.,  906 [party in whose favor the judgment was given, may, without appealing . . ., request the reviewing court to . . . review any . . . matter[] for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal].) While this issue presents a close question, we conclude the statute of limitations does not bar plaintiffs action.

To be timely, an action challenging the adequacy of an EIR must be commenced within 30 days after the county clerk posts the notice of determination that the projects lead agency has filed with it. ( 21152, subds. (a) & (c), 21167, subd. (c); Citizens of LakeMurray Area Assn. v. City Council (1982) 129 Cal.App.3d 436, 440-441.) In addition, the 30-day limitations period does not begin to run if the notice of determination is substantively defective in failing to properly describe the lead agencys actions. ( 21152, subd. (a); see International Longshoremens & Warehousemens Union v. Board of Supervisors (1981) 116 Cal.App.3d 265, 273.) A notice of a determinations adequacy is governed by the substantial compliance doctrine which means actual compliance in respect to the substance essential to every reasonable objective of the statute even though it may contain technical imperfections of

form . . . . [Citations.] (International Longshoremens & Warehousemens Union v. Board of Supervisors, supra, 116 Cal.App.3d at p. 273.)

Defendant filed, and the county clerk posted, the original notice of determination on November 9, the day after its city council certified the SEIR/EIR and approved Irvines project. But this notice erroneously stated certification and approval occurred on October 25, 2005. While section 21152 does not require a notice of determination to include the date of approval, as the trial court noted, this information is mandated by the Guidelines for Implementation of CEQA (Guidelines), which declare a notice of determination shall include the date on which the agency approved the project. (Cal. Code Regs., tit. 14,  15094, subd. (b)(3).) Consequently, the November 9 notice failed to actually comply with all matters of substance. (International Longshoremens & Warehousemens Union v. Board of Supervisors, supra, 116 Cal.App.3d at p. 273.) Furthermore, defendant did not title the amended notice filed on November 14 as a corrected notice. Thus, although not bound by the trial courts findings, we agree with its conclusion that plaintiff had a right to rely on th[e] second Notice of Determination.

3. The SEIR/EIRs Description of the Project

Section 2.1 of the final SEIR/EIR describes [t]he proposed project area for the Santiago Hills II and East Orange Planned Communities as occup[ying] approximately 6,800 acres at the eastern edge of the City that, although located in unincorporated Orange County, was within the Citys Sphere of Influence . . . . This section includes two maps of the area, one regional and one topographical, the latter of which contained a superimposed blue line outlining the project area and markers for each planned communitys location within it.

Citing the acknowledgement in section 2.4.10 of the report that [t]he City is still determining the exact boundaries of areas to be annexed because it is anticipated that large amounts of open space associated with this proposed project area would remain in unincorporated Orange County, plaintiff argues the SEIR/EIR fails to disclose the boundaries of the areas the project proposes for annexation to the city. This argument lacks merit.

To fulfill its role of ensuring the lead agency and the public have enough information to ascertain the projects environmentally significant effects, assess ways of mitigating them, and consider project alternatives, an EIR must provide [a]n accurate, stable and finite project description . . . . (Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1448; County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193.) The final SEIR/EIR meets this standard. It contains a written description of the project area, plus maps depicting both the extent of defendants sphere of influence and the boundary of the project area. (Cal. Code Regs., tit. 14,  15124, subd. (a).) Plaintiff impliedly admitted as much in its petition, which identified [t]he

project[s] . . . geographic components and described in detail the location of all four planned community areas. In addition, the SEIR/EIR includes a description of the development proposed by Irvine within each planned community.

Plaintiffs reliance on defendants admission it had not yet determin[ed] the exact boundaries of areas to be annexed ignores the initial paragraph of this section, which declares: The Santiago Hills II and East Orange Planned Communities are anticipated to be annexed into the City in the future, with annexation to be completed in phases to be determined by the City after having taken action on the general plan amendments and zoning changes for the Santiago Hills II and East Orange Planned Communities[.] Since the SEIR/EIR reviews the entire project area, the mere fact defendant may eventually annex only a portion of it does not render the approval an abuse of its discretion under CEQA. The action approved need not be a blanket approval of the entire project initially described in the EIR. If that were the case, the informational value of the document would be sacrificed. Decisionmakers should have the flexibility to implement that portion of a project which satisfies their environmental concerns. (Dusek v. Redevelopment Agency (1985) 173 Cal.App.3d 1029, 1041 [rejecting CEQA violation claim where defendant agency approved project narrower than one described in EIR].)

Plaintiffs reliance on Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818 is inapposite. There the court invalidated an EIR for the operation of a sand and gravel mining operation, finding the report inadequate, not because it failed to describe the projects boundaries, but rather due to its failure to describe the facilities that will have to be constructed to deliver water to the mining operation, or facts from which to evaluate the pros and cons of supplying the amount of water that the mine will need. (Id. at p. 829.)

Citing a comment from the Orange County Local Agency Formation Commission (LAFCO) that changes in governmental boundaries for the City of Orange or for other service providers are not fully addressed, plaintiff suggests the SEIR/EIR fails to provide sufficient information to allow LAFCO to perform its duties. The law and the administrative record do not support this claim.

LAFCOs purposes include ensuring orderly and efficient municipal expansion. (Gov. Code,  56300 & 56301; Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 495.) Its responsibilities also include the previous determination of defendants sphere of influence (Gov. Code,  56076, 56425, subd. (a)), an area that includes SH2PC, EOPC1, -2, and -3. As Irvine notes, plaintiffs quotation from the LAFCO comment is misleading because it omits the following sentence, which declared LAFCOs underst[anding] that [while] some open space areas may not be annexed to the City of Orange, the boundaries of the areas to be annexed are relatively fixed, particularly with the Santiago Hills II area. Furthermore, the SEIR/EIRs discussion of the potential impacts of annexation in Chapter 3 contains a table identif[ying] the agencies that currently serve the project site and that would serve the project site with approval of the proposed annexation and [a]lso indicat[ing] . . . the SEIR/EIR section where potential physical impacts associated with those services are addressed.

Government Code section 56668 does not alter our conclusion. It describes the factors LAFCO must consider when it review[s] . . . a proposal, i.e., a petition or a resolution from a local agencys legislative body proposing a change of organization such as an annexation of land. (Gov. Code,  56021, 56053, 56054 & 56069.) Since the SEIR/EIR acknowledges defendant does not currently intend to annex the project area, the report does not constitute a proposal under section 56668. But even if it did, LAFCOs comment acknowledged the boundaries of [SH2PC, and EOPC1, -2, and -3] were relatively fixed . . . .

Thus, we conclude plaintiffs attack on the SEIR/EIRs project description lacks merit.

4. Plaintiffs Fallacy of Division Claim

a. Background

The SEIR/EIRs introductory chapter declares [t]his document constitutes both an SEIR analyzing the Santiago Hills II Planned Community area and an EIR that analyzes the remainder of the proposed project. Chapter 3 explains that the scope of the analysis [for SH2PC] addresses . . . substantial changes in the revised Santiago Hills II Planned Community from that previously approved, the discussion [f]or the proposed East Orange Planned Community Area 1 is a project-level analysis . . . because tentative tract maps have been submitted . . ., but [f]or the proposed East Orange Planned Community Areas 2 and 3 . . . along with remaining areas, a program-level analysis of potential impacts was undertaken reflecting the conceptual level of planning that has occurred to date.

Plaintiffs opening brief asserts that, although the SEIR/EIR correctly define[s] the project, it violates CEQA because the reports impacts analyses in

many . . . fields of environmental inquiry break up impacts by separate project components . . . . Irvine argues plaintiff cannot assert this issue because it failed to exhaust its administrative remedies. We agree.

b. The Exhaustion of Administrative Remedies Doctrine

No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination. ( 21177, subd. (a).) This exhaustion of administrative remedies requirement is jurisdictional. (Bakersfield Citizens for Local Control v. City of Bakersfield(2004) 124 Cal.App.4th 1184, 1199.) The rationale for exhaustion is that the agency is entitled to learn the contentions of interested parties before litigation is instituted. If [plaintiffs] have previously sought administrative relief . . . the [agency] will have had its opportunity to act and to render litigation unnecessary, if it had chosen to do so. [Citation.] (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1394; see also State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 794.)

To advance the exhaustion doctrines purpose [t]he exact issue must have been presented to the administrative agency . . . . (Mani Brothers Real Estate Group v. City of Los Angeles, supra, 153 Cal.App.4th at p. 1394.) While less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding because, . . . parties in such proceedings generally are not represented by counsel[] [citation] (id. at p. 1395), generalized environmental comments at public hearings, relatively . . . bland and general references to environmental matters (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197, 1198), or isolated and unelaborated comment[s] (Bankers Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282) will not suffice. The same is true for [g]eneral objections to project approval . . . . [Citations.] (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 910.) [T]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them. [Citation.] (Id. at p. 909.)

The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level. [Citation.] (Porterville Citizens for Responsible Hillside Development v. City of Porterville, supra, 157 Cal.App.4th at p. 909.) An appellate court employs a de novo standard of review when determining whether the exhaustion of administrative remedies doctrine applies. (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873.)

c. Failure to Exhaust Administrative Remedies

In response to Irvines failure to exhaust its administrative remedies claim, plaintiff employs a string-cite response, referring to numerous pages of the administrative record with little or no explanation of how each citation supports the assertion defendant was fairly apprized [sic] of its noncompliance with CEQA. Whats more, none of the record citations preserve plaintiffs fallacy of division claim for judicial review.

Plaintiff cites a statement in a 2002 document defendants Community Development Department sent to environmental consulting firms seeking proposals and qualifications for preparation of the SEIR/EIR describing the project. A second supporting reference is to an October 2003 e-mail from a consultant relating to the traffic modeling scenarios for preparation of the draft SEIR/EIR. As Irvine notes, these statements, made before completion of the draft SEIR/EIR, do not constitute allegations of CEQA noncompliance during the public comment period or the public hearing on the projects approval. ( 21177, subd. (a).)

Plaintiffs reliance on Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683 and Gonzales v. City of Santa Ana (1993) 12 Cal.App.4th 1335 lacks merit. Gonzales is inapposite because it involved litigation under the Community Redevelopment Law (Health & Saf. Code,  33000 et seq.), not CEQA, and the public comments cited in the opinion sufficed to preserve the issue for judicial review. (Gonzales v. City of Santa Ana, supra, 12 Cal.App.4th at pp. 1348-1349, fn. 17.)

In Woodward, the court held the administrative remedies [requirement] w[as] exhausted by a comment letter submitted . . . in response to the notice of preparation for an EIR. (Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at p. 712.) We find Woodward unpersuasive. Section 21177 specifically requires the alleged grounds for noncompliance be presented . . . during the public comment period provided by this division or prior to the close of the public hearing on the project . . . . ( 21177, subd. (a).) In applying section 21177, we must assume the Legislature meant what it said and interpret the statute according to its plain meaning. (Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1121.) Comments in response to an agencys issuance of a notice to prepare an EIR do not satisfy section 21177s exhaustion requirement.

The remainder of plaintiffs record citations fare no better. It cites: (1) A public comment that [t]he air quality chapter does not include a detailed analysis of construction emissions and seeks a compilation of [t]he construction schedule, phases, number of workers, worker trips, construction equipment, and truck traffic . . . to determine peak daily construction emissions; (2) a letter in response to the draft SEIR/EIR, in part, noting, [i]ncreased air pollution . . . caused by grading equipment and trucks and requesting a total estimate of these toxic discharges, and some discussion of their effect on public health; (3) another letter which describes the use of a single document for both a project-level and a program-level EIR as confusing and requesting a detailed chronology of the environmental evaluation of the[] . . . proposed developments; and (4) a subsequent statement in the letter declaring [t]he lead agency should identify any potential adverse air quality impacts that could occur from all phases of the project and all air pollutant sources related to the project. These constitute the type of isolated and unelaborated comment[s] by . . . member[s] of the public that courts have held fail to fairly rais[e] the piecemealing argument to the City. (Bankers Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego, supra, 139 Cal.App.4th at p. 282 [finding comment that there ha[s] also been a project splitting, ignoring environmental issues such as traffic and light, ignoring unusual

issues . . ., ignoring the cumulative effects and so on[] did not preserve petitioners piecemealing claim].)

5. The SEIR/EIRs Water Quality Impacts Analysis

a. Background

The SEIR/EIR notes SEIR 1278 for SH2PC established several mitigation measures for water resources, including the development and approval of a ROMP to achieve, among other objectives, water quality. For the current project, two ROMPs were prepared; one covering SH2PC and EOPC1 and another for EOPC2 and -3, with each ROMP consisting of two volumes, one for hydrology and the second for water quality. The SEIR/EIR also notes the ROMPs were considered as part of the

project . . . . In addition . . ., assessments were also conducted . . . regarding water quality within Peters Canyon Reservoir and Irvine Lake . . ., which examined water quality within the reservoirs based upon all inflows . . . from their tributary watersheds, inclusive of predicted flows from the Santiago Hills Phase II Planned Community and East Orange Planned Community Areas 1, 2, and 3. The ROMPs and reservoir water quality analyses are in Appendix B and were circulated with the draft SEIR/EIR.

The report indicated the water resources mitigation measures from the 2000 SEIR had been implemented and concluded no new mitigation measures would be required to reduce the projects potential impacts to less than significant.

Plaintiff now contends the SEIR/EIR fails to comply with CEQA because its discussion of the projects water quality impacts contains very little information on baseline pollutant levels in Irvine Lake, and offers a highly incomplete and conclusory discussion of the projects consistency with the Santa Ana River Basin Plan (Basin Plan) that regulates regional water quality. Irvine disputes these claims and again argues the exhaustion of administrative remedies doctrine bars plaintiff from asserting them. The first part of plaintiffs claim lacks substantive merit, and the latter portion has not been preserved for judicial review.

b. Failure to Exhaust Administrative Remedies

Plaintiff again attempts to show it exhausted its administrative remedies by employing a conclusory string-cite response, with many of the record references simply deposited in a footnote. The references include comments by consultants or correspondence in response to defendants notice of the preparation issued in advance of the draft SEIR/EIR which, as explained above, fail to satisfy the requirements of section 21177, subdivision (a).

Even as to the comments submitted by agencies and members of the public either in response to the draft SEIR/EIR or before the city councils hearing on project approval, the bulk of the materials cited in the opening brief involve only generalized environmental comments, relatively . . . bland and general references to environmental matters (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at pp. 1197, 1198), isolated and unelaborated comment[s] (Bankers Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego, supra, 139 Cal.App.4th at p. 282), or [g]eneral objections to project approval . . . . [Citations.] (Porterville Citizens for Responsible Hillside Development v. City of Porterville, supra, 157 Cal.App.4th at p. 910.) Concerning Basin Plan consistency, the only arguably relevant comment appears in a January 2004 letter to defendants planning department summarizing a consultants peer review of the Surface Water Quality Technical Reports and . . . (ROMP[s]) prepared . . . for the . . . [p]roject[]. The letter notes, Minimization, if not elimination, of non-storm runoff should be a Project design objective in order

to . . . be consistent with the Model Water Quality Management Plan . . . approved by the Santa Ana Regional Water Quality Control Board . . . . This comment fails to satisfy the exact issue requirement for the exhaustion of administrative remedies doctrine. (Mani Brothers Real Estate Group v. City of Los Angeles, supra, 153 Cal.App.4th at p. 1394.) Thus, plaintiff fails to establish judicial review of the Basin Plan consistency contention was preserved.

c. IrvineLakes Baseline Pollution Levels

As for plaintiffs Irvine Lake baseline water quality conditions argument, a comment by the County of Orange in response to the draft SEIR/EIR cites the reports statement that monitoring data indicate that the reservoir does not consistently meet certain water quality objectives[.] It also notes [t]he [draft reports] discussion does not, however, specify what is not being met. This is important in order to assess potential impacts due to the proposed development. This comment sufficed to preserve the lake baseline information claim for judicial review. (Galante Vineyards v. Monterey Peninsula Water Management Dist., supra, 60 Cal.App.4th at pp. 1119-1121.)

Nonetheless, plaintiffs argument fails on its merits. To ensure meaningful assessment of a proposed projects significant environmental impacts and the consideration of mitigation measures, an EIR must provide a description of the existing physical conditions on the property at the start of the environmental review

process . . . . (Save Our Peninsula Committee v. MontereyCountyBd. of Supervisors, supra, 87 Cal.App.4th at p. 119; see also Cal. Admin. Code, tit. 14,  15125, subd. (a).)

Relying solely on the contents of the SEIR/EIR itself, plaintiff argues the report contains one, vague and conclusory sentence addressing baseline conditions in Irvine Lake, and complains [t]his sketchy reference reveals no information specifying pollutant levels (e.g., biochemical or chemical oxygen demand), or addressing other constituents of concern (e.g., total dissolved solids, heavy metals, pesticides and herbicides, hydrocarbons etc.).

Again, plaintiff fails to accurately summarize the relevant facts. The SEIR/EIR discusses the environmental setting for Irvine Lake in section 3B.3.3.2. The reports surface water quality discussion for the EOPC parcels identifies the main sources of water for Irvine Lake and acknowledges the lake receives runoff from all three EOPC sites. As for the lakes water quality the report declares, monitoring data indicate that the . . . reservoir[] do[es] not consistently meet certain water quality objectives and cites Appendix B-2, the ROMP volume analyzing water quality for SH2PC and EOPC1 for further detail.

As Irvine notes, the ROMP provides the information plaintiff contends is missing from the SEIR/EIR, including tables for the water quality and the presence of pathogens in not only the lake but the other relevant water resources. In a footnote, plaintiff grudgingly admits the the missing information appears in the ROMP, but, arguing from the other side of its mouth, then describes it as mere raw . . . data. It cannot have it both ways.

In addition, Irvine correctly asserts the Guidelines permit the use of appendices containing technical detail and the incorporation of documents in the preparation of an EIR. (Cal. Admin. Code, tit. 14,  15147 [Placement of highly technical and specialized analysis and data in the body of an EIR should be avoided through inclusion of supporting information and analyses as appendices to the main body of the EIR that may be prepared in volumes separate from the basic EIR document if readily available for public examination]; Cal. Admin. Code, tit. 14,  15150, subd. (a) [An EIR . . . may incorporate by reference all or portions of another document which is a matter of public record or is generally available to the public, and the incorporated language shall be considered to be set forth in full as part of the text of the EIR].) In this case, the ROMP and water quality analyses were available for public viewing along with the draft SEIR/EIR and made part of the final SEIR/EIR. Consequently, plaintiff cannot now claim that the [SEIR/]EIR d[id] not sufficiently describe the existing water quality conditions of Irvine Lake or the projects other water resources. (San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 595.)

Finally, while plaintiff attempts to characterize the SEIR/EIRs defects as procedural in nature, in part it disputes the SEIR/EIRs conclusions and defendants findings concerning the projects environmental impacts. Plaintiff has waived review of the latter contentions by failing to present a complete summary of the evidence on appeal. As with all substantial evidence challenges, an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellants failure to carry his burden. [Citation.] (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.)

6. The SEIR/EIRs Traffic Impacts Analysis

a. Background

Section 3J of the SEIR/EIR analyzes the projects potential impacts on traffic and circulation. It discusses the potential traffic and transportation impacts associated with the proposed project, which consists of three distinct components: [] 1. Changes to the previously approved development plan for Santiago Hills II Planned Community. . . .  [] 2. The proposed development plan for the East Orange Planned Community. [] 3. Proposed amendments to the Orange County [Master Plan of Arterial Highways]. . . . The report further explains that, For [SH2PC], which has a previously certified environmental document [SEIR 1278], the analysis addresses only substantial changes . . . from that previously approved, substantial changes in the setting or regulatory setting related to the [SH2PC] study area, or new information related to the [SH2PC] study area that was not known at the time that 2000 SEIR 1278 was certified.

The report explains that [e]valuation of roadway system performance is based on level of service (LOS) analysis of each roadway segment or intersection. Traffic LOS designations range from A through F with LOS A representing free flow conditions and LOS F representing severe traffic congestion. LOS is measured by comparing the existing or projected future traffic volume with the capacity of the roadway or intersection [V/C]. In addition, the SEIR/EIR notes LOS D . . . is the performance standard that has been adopted by the local jurisdictions for . . . intersections in the study area not covered by Orange Countys Congestion Management Plan.

The SEIR/EIR also includes Appendix G. It contains a traffic impact analysis for the project area, providing information on the current average daily traffic (ADT) volumes on the study area circulation . . . based on traffic counts collected in 2002 and 2003, graphs summarizing daily trip estimates for the proposed . . . plan and [t]he difference in daily trip generation between the proposed . . . plan and the current [SEIR 1278 plan], and illustrations of ADT volumes on the study area circulation system under existing conditions plus the approved [SH2PC] development plan . . . under existing conditions plus the proposed [SH2PC] development plan, both of which also indicate[s] the ADT differences compared to existing conditions without the [SH2PC] development.

Both the SEIR/EIR and Appendix G estimate the development of SH2PC, EOPC1 and -2 would generate nearly 43,000 in daily trips consisting of 16,453 in SH2PC, 12,146 in EOPC1, and 14,344 in EOPC2. For SH2PC, the estimate is three percent less than the 16,960 daily trips estimated in SEIR 1278. In approving the SEIR/EIR, the city council incorporated project design features expand[ing] and improv[ing] upon the mitigation measures required in SEIR 1278.

b. SH2PCs Baseline Traffic Conditions

Plaintiff argues the SEIR/EIRs traffic impacts analysis violates CEQA, in part, by includ[ing] in[] the baseline . . . existing traffic conditions the 16,690 trips that would have been generated by the never-built and since-abandoned 2000 SH2PC development plan; [h]ence, the baseline used for discussing, and determining the degree of significance of, project-related traffic impacts . . . includes nonexistent physical conditions in the affected area. Defendant disputes this contention. In a footnote, it also claims plaintiff failed to exhaust its administrative remedies concerning SH2PCs baseline conditions. Since this approach violates the requirement that arguments be placed under a separate heading or subheading summarizing the point (Cal. Rules of Court, rule 8.204(a)(1)(B)), we need not discuss this issue. (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 160; Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562.)

Nonetheless, this time plaintiffs argument fails to provide an accurate summary of both the record and the law. The administrative record clearly acknowledges development of SH2PC will produce nearly 16,500 daily vehicular trips and the SEIR/EIR identifies mitigation measures to reduce the potential adverse impacts of these trips along with other mitigation measures from the EOPC developments. Nothing in the record supports plaintiffs assertion the SEIR/EIR in effect subtracts from the projects impacts . . . all . . . traffic trips attributable to its revised SH2PC subpart and

trips . . . allocated to the 2000 SH2PC project . . . .

Plaintiff also ignores the applicable law. The portion of the SEIR/EIR it challenges relates to SH2PC, the parcel subject to previous and now final CEQA approvals. Defendant reviewed the current development for this project as a supplement to the SEIR 1278. Section 21166 provides that [w]hen an environmental impact report has been prepared for a project pursuant to this division, a subsequent or supplemental environmental impact report is required only if [s]ubstantial changes are proposed in the project or occur with respect to the circumstances under which the project is being undertaken that require major revisions of the environmental impact report, or [n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available. In addition the CEQA Guidelines allow a supplement to [an] EIR to contain only the information necessary to make the previous EIR adequate for the project as revised. (Cal. Admin. Code, tit. 14,  15163, subd. (b).)

Case law also supports this conclusion. When a lead agency is considering whether to prepare an SEIR, it is specifically authorized to limit its consideration of the later project to effects not considered in connection with the earlier project. [Citation.] (Temecula Band of Luiseo Mission Indians v. Rancho Cal. Water Dist. (1996) 43 Cal.App.4th 425, 437; see also Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1477 [we are satisfied that the project before the board was a modification of the existing . . . project, not an entirely new project]; Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, 1544 [[S]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired ( 21167, subd. (c)), and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process].) The cases cited by plaintiff are inapposite since each involved circumstances where there had been no prior CEQA approval. We conclude the SEIR/EIR properly describes and considers the baseline traffic conditions.

c. Santiago Canyon Road

Plaintiff contends the SEIR/EIR fails to properly describe the projects environmental setting by not considering the inconsistency in traffic analysis methodologies required by its general plan and Orange Countys general plan as they relate to the traffic impacts on Santiago Canyon Road. It argues the SEIR/EIR must disclose traffic impacts on Santiago Canyon Road, in the manner in which they must be disclosed under the county general plan. This argument lacks merit.

Section 15125, subdivision (d) of the CEQA Guidelines declares an EIR shall discuss any inconsistencies between the proposed project and applicable general plans and regional plans. (Cal. Admin. Code, tit. 14,  15125, subd. (d).) Currently, the portion of Santiago Canyon Road covered by the project is under Orange Countys jurisdiction. Plaintiff asserts the growth management element of the Countys general plan requires the LOS on Santiago Canyon Road be maintained at LOS C as analyzed using the Highway Capacity Manual (HCM) method. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 783.) Defendants general plan requires the use of different methodology to measure traffic impacts, the V/C method, and its circulation element authorizes LOS D as the acceptable level of service on city streets.

Plaintiff acknowledges that [a] plan is applicable when it has been adopted and the project is subject to it . . . . (See Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145, fn. 7 [to be applicable, plan must be legally applicable . . . as to a particular project].) Here, if the project proceeds, defendant will annex the portion of Santiago Canyon Road covered by it. At that point, the road will be governed by the requirements of the citys general plan, not that of the County. CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. [Citations.] (Chaparral Greens v. City of Chula Vista, supra, 50 Cal.App.4th at p. 1145.)

Plaintiff urges [t]he issue . . . [is] not whether the project meets the laxer method for determining LOS under the citys general plan, and denies it is mount[ing] a challenge to the citys selection of its threshold of significance for determining traffic impacts. But it cites to information in the administrative record it claims supports the conclusion that contrary to the SEIR/EIR, evaluation of the projects traffic impacts on Santiago Canyon Road under HCM methodology, yields cumulative impacts substantially more severe (LOS change) than evaluation of such impacts under V/C methodology (no LOS change). This argument exceeds our scope of review.

Since the purpose of an EIR is to provide detailed information on the potentially significant environmental effects of a project that a public agency is either considering implementing or asked to approve, judicial [r]eview is confined to whether an EIR is sufficient as an informational document. (Defend the Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1265; see also Chaparral Greens v. City of Chula Vista, supra, 50 Cal.App.4th at p. 1142.) [W]e must defer to [the agencys] substantive conclusions, so long as the decisions are supported by substantial evidence in the

light of the whole record and there was no prejudicial abuse of discretion. [Citations.] (Chaparral Greens v. City of Chula Vista, supra, 50 Cal.App.4th at p. 1143.) It is not our function to pass on the correctness of the EIRs environmental conclusions, but only upon its sufficiency as an informative document. [Citation.] (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 712.) The mere fact plaintiff disagrees with the methodology employed by defendant to measure the projects potential traffic impacts on Santiago Canyon Road does not require invalidation of the SEIR/EIR, if it provides accurate information.

7. The SEIR/EIRs Alternatives Analysis

a. Background

Chapter 4 of the SEIR/EIR lists 13 project objectives and discusses nine project alternatives, three of which involve variations on the no project alternative. The report eliminates the following three alternative proposals without detailed analysis, explaining in a couple of paragraphs why each one was infeasible: (a) Alternative 4 (integrate commercial/retail center into EOPC2); (b) Alternative 5 (include high school site in EOPC1); and (c) Alternative 6 (eliminate golf course, lodge, and marina from EOPC2).

The SEIR/EIR conducts a detailed analysis of the following six alternatives: (a) Alternative 1A (no project/no build alternative); (b) Alternative 1B.1 (no project/development under existing county general plan/zoning designations);

(c) Alternative 1B.2 (no project/development according to defendants 1989 pre-annexation plans); (d) Alternative 2 (mixed use alternative allowing commercial development in EOPC2); (e) Alternative 3 (reduced density alternative eliminating development of EOPC3); and (f) Alternative 7 (increased residential density in SH2PC and EOPC1, with elimination of development in EOPC2 and -3).

b. Discussion

Plaintiff claims the SEIR/EIR fails to either evaluate a reasonable range of potentially feasible and environmentally advantageous project alternatives or provide an in-depth review of the alternatives it did identify. Defendant disputes these contentions. As explained above, we decline to consider defendants failure to exhaust administrative remedies arguments which are mentioned only in footnotes. However, neither of plaintiffs assertions withstands analysis.

To assist in identify[ing] ways to mitigate or avoid the significant effects that a project may have on the environment (Cal. Admin. Code, tit 14,  15126.6, subd. (b)), [a]n EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable alternative to a project. Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. An EIR is not required to consider alternatives which are infeasible. The lead agency is responsible for selecting a range of project alternatives for examination and must publicly disclose its reasoning for selecting those alternatives. (Cal. Admin. Code, tit 14,  15126.6, subd. (a).)

In reviewing an EIRs consideration of project alternatives, courts employ a rule of reason. [Citations.] (Citizens of GoletaValley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 565; see also Cal. Admin. Code, tit. 14,  15126.6, subd. (f).) CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR, and [e]ach case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. (Citizens of Goleta Valley v. Bd. of Supervisors, supra, 52 Cal.3d at p. 566.) The adequacy of an EIRs alternatives analysis is also governed by a rule of reason. (Foundation for San Franciscos Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 910.) It must contain sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. [Citation.] (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1400, quoting Cal. Admin. Code, tit. 14,  15126.6, subd. (d).) In summary, an EIR must explain in meaningful detail . . . a range of alternatives to the proposed project and, if [the agency] finds them to be infeasible, the reasons and facts that [the agency] claims support its conclusion. (Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 406.)

Plaintiff attacks the range of alternatives considered in the SEIR/EIR by identifying the aspects of each one that rendered it environmentally disadvantageous and then concludes [i]n the end, then, the draft SEIR/EIR disclosed for in-depth review only one alternative with substantial environmental advantages over the project. The apparent premise for this approach is plaintiffs assumption that an alternative which is superior only in some respects to the project cannot satisfy the alternatives analysis reasonable range requirement. This is incorrect.

For a project of the scope and complexity of this one it is practically impossible to imagine an alternative that would provide substantial environmental advantages in all respects. Furthermore, section 15126.6 of the CEQA Guidelines supports defendants approach. Subdivision (a) declares [a]n EIR shall describe a range of reasonable alternatives to the project . . . which would feasibly attain most of the basic objectives of the project but would avoid or substantiallylessen any of the significant effects of the project . . . . (Cal. Admin. Code, tit. 14,  15126.6, subd. (a); italics added.) The phrase avoid or substantially lessen any of the significant effects of the project is repeated in other subdivisions of section 15126.6. (Cal. Admin. Code, tit 14,  15126.6, subds. (b), (c) & (f).) In addition, subdivision (d) provides that, If an alternative would cause one or more significant effects in addition to those that would be caused by the project as proposed, the significant effects of the alternative shall be discussed . . . . (Cal. Admin. Code, tit. 14,  15126.6, subd. (d).)

Plaintiff also argues [t]he draft SEIR/EIR . . . failed to evaluate

in-depth . . . the obvious alternative of a project consisting of no development in EOPC2 & 3 . . . . But an alternative considering this scenario was included in the final SEIR/EIR as Alternative 7 as a response to the public comments. Plaintiff argues the timing of Alternative 7s inclusion and consideration improperly precluded public review, comment and responses to comments. Not so. The inclusion of new material in a final EIR is not fatal, since the final version must respond to comments on the draft EIR, with the result that the final EIR will almost always contain information not included in the draft EIR. [Citation.] What matters is whether significant new information is added after the public comment period closes. (Defend the Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1273.) Here, the final EIR was issued in advance of the public hearings on the SEIR/EIR and the project.

Plaintiffs alternative claim that the SEIR/EIR failed to conduct an in-depth review of the alternative also lacks merit. Its opening brief asserts [t]he SEIR/EIR uses a checkbox matrix and conclusory one- or two-sentence bullet point paragraphs purporting to compare alternatives selected for in-depth review with the project. First, the use the matrix is expressly authorized by the CEQA Guidelines. (Cal. Admin. Code, tit. 14,  15126.6, subd. (d) [A matrix displaying the major characteristics and significant environmental effects of each alternative may be used to summarize the comparison].)

Second, plaintiffs argument again misstates the contents of the administrative record. Section 4.3 of the SEIR/EIR contains subheadings for each proposed alternative followed by a two-paragraph explanation of that alternative. In section 4.4, the report discusses the three alternatives eliminated from the detail analysis, again providing a two-paragraph summary explaining why each one was found to be infeasible.