- Statement of Overriding Considerations Supports City's Decision That Project Alternatives Are Infeasible
- October 21, 2009 | Authors: Mona Ebrahimi; Daniel J. O'Hanlon
- Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
In California Native Plant Society v. City of Santa Cruz, (--- Cal.Rptr.3d ----, Cal.App. 6 Dist., August 20, 2009) a California Court of Appeal considered whether a city violated the California Environmental Quality Act (“CEQA”) when it approved a project for a city-owned greenbelt, including a multiuse trail where the project will have a significant impact on the habitat of the Santa Cruz tarplant. The Court of Appeal held that the city did not violate CEQA when it issued a statement of overriding considerations, including trail accessibility, that rendered alternatives to the proposed project infeasible.
Arana Gulch is a scenic natural area on the eastern boundary of the City of Santa Cruz (“City”). Arana Gulch was in private ownership in 1979 when City designated the greenbelt for preservation. City purchased Arana Gulch in 1994 and opened it for public use. City began the planning process in 2003 for the Arana Gulch Master Plan, which included plans for an east-west multiuse trail that would connect Broadway Avenue and Brommer Street through Arana Gulch. The principal components of the master plan are resource protection and public use, including trails through Arana Gulch. On the issue of resource management, a key goal of the master plan “is to preserve and restore prairie habitat, particularly Santa Cruz tarplant populations.” The plan develops a long-term adaptive management program for the tarplant. The master plan proposes an approximately 2 mile long trail system that would provide public access for pedestrians, bicyclists, and wheelchairs users.
The draft environmental impact (“DEIR”) identified that any trail segments through Arana Gulch would represent a direct loss of habitat for the Santa Cruz tarplant and that the loss of habitat would be greater with a multiuse trail because the trail would be wider than a pedestrian-only trail. The DEIR identified mitigation measures and alternatives for the project. California Native Plant Society (“Society”) commented during the public review period. Society criticized many aspects of the DEIR, including the analysis of the project alternatives.
The final environmental impact report (“EIR”) responded to Society’s comments regarding project alternatives. The City’s Parks and Recreation Commission recommended that the City Council not certify the EIR but the City’s Planning Commission recommended that the City Council certify the EIR. The City Council held a public meeting to consider the Arana Gulch draft master plan. Society and members of the public opposed the project and specifically opposed the inclusion of paved trails because of their impact on tarplant habitat.
The City Council adopted a resolution certifying the EIR and a separate resolution adopting a “Findings of Fact and a Statement of Overriding Considerations” in which the City Council concluded “that each of the alternatives analyzed in the EIR is infeasible for failure to satisfy project objectives and on policy grounds.” The City Council identified as overriding considerations “‘economic, social, or other benefits that render acceptable the significant and unavoidable effect on the Santa Cruz tarplant’ including improved access for people with disabilities and trail connections to coastal resources.”
Society filed a petition for writ of mandate in a California superior court. The superior court denied Society’s petition and Society appealed that decision to the Court of Appeal.
The Court of Appeal affirmed the decision of the superior court. Society alleged that City violated CEQA based on the EIR’s analysis of alternatives. Society also challenged the City’s findings with respect to project alternatives. The court held that City did not violate CEQA.
A project that will have significant environmental impacts “may be approved only if the decision-making body finds (1) that identified mitigation measures and alternatives are infeasible, and (2) that unavoidable impacts are acceptable because of overriding considerations.” If an EIR identifies significant environmental effects that have not been mitigated or avoided, an agency may not approve the project unless it finds that there are “‘[s]pecific economic, legal, social, technological, or other considerations’ that render infeasible the mitigations of alternatives that were identified in the EIR.’” If an agency finds that an alternative is infeasible, it must explain its finding in detail. Before an agency can approve a project that will have significant unavoidable environmental impacts, it “must make an express written determination that the project’s benefits outweigh any potential environmental harm.”
Society first claimed that the EIR failed as an informational document because of its analysis of project alternatives. The court found “no violation of CEQA’s informational mandates in the alternatives analysis.” Society argued that, if City thought that the master plan had to contain an Americans with Disabilities Act (“ADA”) compliant path, then the alternatives in the EIR must also contain an ADA compliant path. First, the court found that the record did not show that City considered an ADA compliant path to be “an absolutely necessary component” of the plan. Society also contended that none of the alternatives include an ADA compliant trail. The court noted that one of the alternatives included an ADA compliant path, but that the alternative did not call for the path to create a paved connection to the streets outside of Arana Gulch. Alternatives that are “discussed in an EIR need not fully accomplish all of the project objectives.” Here, all of the alternatives meet some of the objectives of the project.
Society also argued that the EIR was not adequate because it failed to consider an alternative off-site east-west bike path that would avoid significant and unavoidable impacts to the Santa Cruz tarplant. There is no rule that an EIR must explore off-site project alternatives in every case. Also, Society is advancing an off-site alternative to one component of the project, not the entire project. Any requirement that an EIR describe project alternatives applies to the project as a whole, not the “various facets” of the project. Previous documents exhaustively evaluated a project to connect Broadway Avenue and Brommer Street and it was not unreasonable for City to decline to revisit alternative path locations that City had previously rejected.
Society’s second argument was that City erred in making its finding of project alternative infeasibility. In its findings of fact, City concluded that each of the four alternatives in the EIR fail to meet project objectives. Society argued that “City cannot in a public process [the EIR] tell the public that there are feasible alternatives, and then at the end of the process [project approval] make a contrary conclusion.” The court found that Society’s argument is fundamentally flawed. At the EIR stage, “the question is whether the alternative is potentially feasible.” When the decision-making body considers the alternatives, it “‘may or may not reject those alternatives as being infeasible’ when it comes to project approval.” The decision-making body’s decision to reject the alternatives “does not undermine the validity of the EIR’s alternatives or analysis.” The potentially feasible alternatives in an EIR “‘are suggestions which may or may not be adopted by the decisionmakers.’” Thus, City could reject the alternatives as infeasible without subverting the CEQA environmental review process.
Society also argued that City erred in finding the alternatives infeasible on policy grounds. City’s findings of infeasibility were in fact based on policy considerations “particularly the City’s interest in promoting transportation alternatives as well as access to its open space for persons with disabilities.” Public Resources Code section 21081 allows for policy considerations to be taken into account when determining the feasibility of an alternative.
The court found that Society has a policy disagreement with City because it disagrees with how City resolved competing interests when City made a decision about the feasibility of alternatives for the east-west path. City’s decision, however, “was consistent with permissible statutory factors” and “was justified under relevant case law.”