Save the Hill Grp. v. City of Livermore

76 Cal.App.5th 1092

292 Cal.Rptr.3d 120

SAVE THE HILL GROUP, Plaintiff and Appellant,

v.CITY OF LIVERMORE, Defendant and Respondent;

Lafferty Communities, Inc., Real Party in Interest and Respondent.

A161573

Court of Appeal, First District, Division 5, California.

Filed March 30, 2022

Greenfire Law and Jessica L. Blome, Berkeley, for Plaintiff and Appellant.

Jason Rudy Alcala, City Attorney, Kelly Joanne Trujillo, Assistant City Attorney; Remy Moose Manley, Sabrina V. Teller and Elizabeth R. Pollock, Sacramento, for Defendant and Respondent.

Buchalter, Douglas C. Straus, and Alicia Guerra, San Francisco, for Real Party in Interest and Respondent.

Jackson, P. J.

This appeal is from a superior court judgment denying a petition for writ of mandate filed by appellant, Save the Hill Group (Save the Hill), a private group of concerned residents, against respondents, developer and real party in interest, Lafferty Communities, Inc. (Lafferty),¹ and the City of Livermore (City). Save the Hill seeks to have set aside the City's decisions to approve a residential housing development project known as the Garaventa Hills Project (the Project) and to certify a reissued final environmental impact report (RFEIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 2100 et seq.).²

For reasons that follow, we conclude Save the Hill has raised a challenge to the adequacy of the RFEIR's analysis of the "no project" alternative that is both preserved for appeal and meritorious. The RFEIR's certification and the Project's approval therefore cannot stand. Accordingly, we reverse and remand to the superior court for further proceedings consistent with the opinion set forth post .

FACTUAL AND PROCEDURAL BACKGROUND

I. The Project and Project Site.

On July 27, 2011, Lafferty submitted a development application for 76 homes on a 31.7-acre project site in the Garaventa Hills that is the last remaining undeveloped area in that section of the City of Livermore (hereinafter, Project Site). The initial proposed development included a looped roadway system and a two-way vehicular and pedestrian connector bridge over Altamont Creek, which crosses the Project Site. On November 16, 2011, the City issued a notice of preparation of a draft environmental impact report (DEIR), which was published a year later, in November 2012.

The DEIR described the Project Site, known as Garaventa Hills, as "moderately steeply sloping" with two prominent knolls at the center and an intermittent stream channel, Altamont Creek, at the southern boundary. Garaventa Hills consists of predominately non-native grassland habitat. West of the Project Site is the 24-acre Garaventa Wetlands Preserve, owned and managed by the Livermore Area Recreation and Park District (LARPD). The Project Site, together with the Garaventa Wetlands Preserve, provides habitat for a variety of special-status species protected under the California Endangered Species Act and/or the federal Endangered Species Act. These species include the California red-legged frog, California tiger salamander, California burrowing owl, San Joaquin kit fox, western spadefoot toad, vernal pool fairy shrimp, Livermore tarplant, palmate-bracted bird's beak, and Congdon's tarplant.

The area of the Garaventa Hills and Wetlands Preserve is hydrologically connected to the Springtown Alkali Sink, a unique alkaline wetlands area owned and managed by the Wetlands Exchange in cooperation with the City, the California Department of Fish and Wildlife (CDFW), and the U.S. Fish and Wildlife Service (USFWS). The DEIR recognized that any alterations to existing drainage patterns in the Garaventa Hills may affect the quantity, timing and quality of precipitation that enters these wetlands and which is needed to maintain a functioning ecosystem.

When comments on the DEIR were solicited from the public, it became clear there was considerable opposition to Lafferty's original proposal. Lafferty therefore altered course and proposed a more modest project that reduced the number of residential units from 76 to 47, eliminated the vehicular bridge, and preserved a large rock outcropping. The City then released a final environmental impact report (FEIR) in June 2014.

On July 1, 2014, the City's planning commission recommended that the city council reject Lafferty's second proposal due to concerns about grading, aesthetics and comments by the LARPD regarding compatibility with the Garaventa Wetlands Preserve. The city council agreed and, on September 14, 2015, declined to certified the FEIR or approve Lafferty's second proposed project.

Lafferty, therefore, returned to the drawing board and, on September 8, 2017, submitted a revised application. This smaller-scale project consisted of 44 new residences, and a pedestrian bridge across Altamont Creek that would also serve as a secondary emergency vehicle access (EVA) road. In August 2018, the City published the RFEIR. According to the RFEIR, the project would result in the permanent removal of 31.78 acres of grasslands with an additional 1.18 acres being temporarily disturbed for construction of the pedestrian bridge and EVA road. To address these and other environmental impacts, various mitigation measures were proposed, including acquisition of an 85-acre compensatory mitigation site (the Bluebell site) located in the Springtown Alkali Sink.

II. The Approval and RFEIR Certification Process.

On August 23, 2018, the City held a neighborhood meeting to discuss the revised Project. On December 4, 2018, the planning commission then conducted a public hearing to consider the RFEIR. Afterward, the planning commission unanimously agreed to recommend that the city council approve the RFEIR with a few changes, including a reduction in the number of proposed residences from 47 to 44.

On April 22, 2019, the city council held a public hearing on the RFEIR with the planning commission's proposed changes. After the planning commission presented the RFEIR and numerous citizens, including representatives of Save the Hill, commented on it, the city council adopted a resolution certifying the RFEIR and approving the Project that is now before us. The following day, the City filed its notice of determination.

III. The Petition.

On May 23, 2019, Save the Hill filed a petition for writ of mandate (petition) asserting causes of action for, among other things, failure to consider significant environmental impacts, to adequately investigate and evaluate the no-project alternative to the Project, and to mitigate significant environmental impacts. Save the Hill asked the superior court to set aside and vacate the Project's approval and certification of the RFEIR and to order the City to prepare a legally adequate environmental impact report (EIR). The administrative record was lodged on September 5, 2019, and a hearing was set for January 10, 2020.

IV. The Superior Court's Order.

On January 16, 2020, the superior court issued a tentative order finding the RFEIR's determination of infeasibility for the no-project alternative inadequate because it failed to disclose and evaluate the possibility of using existing mitigation funding to make the no-project alternative feasible. The court then asked for supplemental briefing on the issue whether Save the Hill exhausted its administrative remedies in challenging the RFEIR as inadequate on this basis.

On April 20, 2020, the superior court issued its final order denying Save the Hill's petition. Judgment was entered in respondents’ favor on September 23, 2020. This appeal followed.

DISCUSSION

Save the Hill contends the superior court erred by finding that it failed to exhaust administrative remedies before raising a legal challenge to the adequacy of the RFEIR's evaluation of the possibility of having no project as a reasonable alternative to the Project. Additionally, Save the Hill contends the City violated CEQA by certifying an RFEIR that failed to: (1) adequately evaluate the no-project alternative; (2) adequately evaluate or mitigate the Project's environmental impacts on the threatened vernal pool fairy shrimp and the hydrologically significant Springtown Alkali Sink; (3) identify appropriate compensatory mitigation for the permanent loss of about 32 acres of seasonal wetlands; and (4) evaluate the possibility of preserving Garaventa Hills as a means to meet the City's unrelated contractual obligations to acquire environmentally significant properties to mitigate the environmental harms of other projects. We begin with the relevant law.

I. The CEQA Framework.

The Legislature intended CEQA " ‘ "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." ’ " ( Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511, 241 Cal.Rptr.3d 508, 431 P.3d 1151 ( Sierra Club ).) " ‘ "[T]he purpose of CEQA is to protect and maintain California's environmental quality. With certain exceptions, CEQA requires public agencies to prepare an EIR for any project they intend to carry out or approve whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental effect ...." [Citation.] The California Supreme Court has "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." ’ " ’ ([Citation], quoting Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, [26 Cal.Rptr.2d 231, 864 P.2d 502].)" ( California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, 186, 170 Cal.Rptr.3d 488 ( California Clean Energy ).)

An EIR is "an informational document" designed "to provide public agencies and the public in general with detailed...