1 Charles F. Robinson(SBN 113197) Kelly L. Drumm (SBN: 172767) 2 kelly. drumm @ucop.edu THE REGENTS OF THE 3 UNIVERSITY OF CALIFORNIA Office of General Counsel 4 1111 Franklin St 8th Fl Oakland, CA 94607 5 Telephone:(510) 987 -9765 Facsimile:(510) 987-9757 6 EXEMPT FROM FILING FEES Amrit S. Kulkarni(SBN: 202786) GOVT CODE § 6103 7 [email protected] Julia L. Bond (SBN: 166587) 8 jbond @meyersnave.com MEYERS,NAVE, RIBACK, SILVER &WILSON 9 555 12th Street, Suite 1500 Oakland, CA 94607 10 Telephone:(510) 808-2000 Facsimile:(510) 444 -1108 11 Attorneys for THE REGENTS OF THE 12 UNIVERSITY OF CALIFORNIA
13 [ATTORNEYS CONTINUED ON NEXT PAGE] 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF ALAMEDA 16
17 ERIC LARSEN and STEFANIE RAWLINGS, Case No. RG12644349 18 Petitioners, OPPOSITION TO PETITION FOR WRIT 19 OF MANDATE v. 20 Assigned for All Purposes to: CITY OF ALBANY, Hon. Evelio Grillo 21 Respondent. Date: May 16, 2013 22 Time: 1:30 PM Dept.: 31 23 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Action Filed: August 20, 2012 24 Intervenor and Real Party in 25 Interest.
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OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 CRAIG Labadie, City Attorney(SBN 101681) [email protected] 2 CITY OF ALBANY 1000 San Pablo Avenue 3 Albany, CA 94706 Telephone:(510) 528-5858 4 Todd A. Williams(SBN 197489) 5 WENDEL, ROSEN BLACK &DEAN LLP 1111 Broadway. 24th' Floor 6 Oakland, CA 94607 Telephone (510) 834-6600 7 Facsimile:(510) 834-1928
8 Attorneys for Respondent CITY OF ALBANY 9
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OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ...... 1
4 II. SUMMARY OF ARGUMENT ...... 2
5 III. STATEMENT OF FACTS...... 3
6 A. The Project...... 3
7 B. In 1998, The Regents Approved a Master Plan for the Larger University Village Project and Certified a Focused EIR...... 3 8 C. In 2004, The Regents Amended the Master Plan for the Larger University 9 Village Project and Certified a Subsequent Focused EIR...... 4
10 D. The Project Does Not Include the Gill Tract Agricultural Research Field...... 5
11 E. The City's EIR for the Project...... 6
12 F. Project Proceedings...... 7
13 G. The "Occupy the Farm" Movement at the Gill Tract Agricultural Research Field...... 9 14 H. The City Council Certifies the EIR and Approves the Project...... 9 15 IV. STANDARD OF REVIEW ...... 9 16 V. ARGUMENT ...... 11 17 A. Petitioners Failed to Meet Their Burden of Showing that the City Did Not 18 Adopt a Feasible Alternative or Justify Its Rejection of the Alternative As Infeasible...... 11 19
1. The City Is Only Required to Analyze Feasible Alternatives ...... 11 20 2. The City's Rejection of the Existing Zoning Alternative Was 21 Properly Based On Policy Considerations and Supported By Substantial Evidence In the Record...... 12 22 3. Petitioners' Arguments Attacking the City's Infeasibility Findings 23 AreWithout Merit...... 15
24 B. Petitioners Failed to Meet Their Burden of Showing that the EIR Did Not Analyze a Reasonable Range of Alternatives...... 18 25 1. CEQA Requires Analysis of a Reasonable Range of Alternatives...... 18 26 2. The City Analyzed a Reasonable Range of Alternatives...... 19 27 3. Petitioners' Attacks on the Range of Alternatives Is Without Merit...... 20 28 i OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 4. Petitioners' Cases Are Distinguishable...... 22
2 C. Petitioners Failed to Meet Their Burden of Showing that the City Did Not Analyze Agricultural Resources...... 23 3 1. The City's Determination of No Significant Impact on Agricultural 4 Resources Is Supported By Substantial Evidence...... 23
5 2. Petitioners' Attack on the FMMP Standard Is Barred By Exhaustion, Outside the Scope of the Record and Without Merit In Any Event...... 24 6 3. Petitioners' Piecemealing Argument Is Not Supported By the 7 Record...... 26
8 D. Petitioners Failed to Show that the City's Responses Violated CEQA...... 27
9 1. CEQA Requirements for Responses to Comments...... 27
10 2. The City's Responses to Comments Here Complied with CEQA...... 28
11 3. Petitioners' Cases Are Distinguishable...... 30
12 VI. CONCLUSION ...... 30
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ii OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 TABLE OF AUTHORITIES
2 Pages) CASES 3 Al Larson Boat Shop, Inc. v. Board ofHarbor Comm. 4 (1993) 18 Ca1.App.4th 729...... 27 5 Barthelemy v. Chino Basin Mun. Water Dist. 6 (1995) 38 Cal.App.4th 1609...... 10
7 Big Rock Mesas Property Owners Assn. v. Board ofSupervisors (1977) 73 Ca1.App.3d 218...... 21 8 Burger v. County ofMendocino 9 (1975)45 Ca1.App.3d 322...... 16 10 California Native Plant Society v. City ofRancho Cordova 11 (2009) 172 Cal.App.4th 603...... 24
12 California Native Plant Society v. City ofSanta Cruz (2009) 177 Ca1.App.4th 957...... passim 13 California Oak Foundation v. Regents of Univ, of Cal. 14 (2010) 188 Cal.App.4th 227...... 21 15 Centerfor Biological Diversity v. County ofSan Bernardino ...... 16, 22 16 (2010) 185 Cal.App.4th 866......
17 Cherry Valley Pass Acres &Neighbors v. City ofBeaumont (2010) 190 Cal.App.4th 316...... 20 18 Citizensfor Goleta Valley v. Board ofSupervisors 19 (1990) 52 Cal.3d 553...... 10, 11, 18, 19
20 Citizens of Goleta Valley v. Board ofSupervisors ...... 16 21 (1988) 197 Cal.App.3d 1167
22 City ofDel Mar v. City ofSan Diego (1982) 133 Ca1.App.3d 401 ...... 13, 14, 16 23 Coalition for Student Action v. City ofFullerton 24 (1984) 153 Ca1.App.3d 1194...... 25
25 Defend the Bay v. City ofIrvine (2004) 119 Cal.App.4th 1261 ...... 11, 15, 24 26 Govt. v. City ofEureka 27 Eureka Citizensfor Responsible (2007) 147 Cal.App.4th 357...... 25 28
iii OPPOSITION TO PETITION FOR WRIT OF MANDATE of 1 Friends of "B "Street v. City Hayward (1980) 106 Cal.App.3d 988 ...... 24 2 Gentry v. City ofMurrieta 3 (1995) 36 Ca1.App.4th 1359...... 24 4 Habitat and Watershed Caretakers v. City ofSanta Cruz 5 (2013)2013 WL 600510 ...... 22, 23
6 In re Bay-Delta etc. (2008)43 Ca1.4th 1143...... 11 7 Laurel Heights Improvement Assn. v. Regents ofthe University ofCalifornia 8 (1988)47 Cal.3d 376...... 10, 26, 27 9
Leonoff v. Monterey County Bd. of Supervisors ...... 24 10 (1990) 222 Ca1.App.3d 1337......
11 Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477...... 18 12
Oakland Heritage Alliance v. City of Oakland 13 (2011) 195 Ca1.App.4th 884...... 11, 25 14 People v. County of Kern (1974) 39 Cal.App.3d 830...... 30 15
16 Rural Landowners Assn v. City Council ofLodi (1983) 143 Ca1.App.3d 1013 ...... 30 17' Sequoyah Hills Homeowners Assn. v. City of Oakland 18 (1993) 23 Ca1.App.4th 704...... 20
19 Sierra Club v. City ofOrange (2008) 163 Ca1.App.4th 523...... 10 20
Progress v. City and County of San Francisco 21 Snarled Traffic Obstructs (1999) 74 Ca1.App.4th 793...... 26 22 Societyfor California Archaeology v. County ofButte 23 (1977)65 Cal.App.3d 832...... 28
24 Tahoe Vista Concerned Citizens v. County ofPlacer (2000) 81 Ca1.App.4th 577...... 25 25 Twain Harte Homeowners Assn v. County of Tuolumne 26 (1982) 138 Ca1.App.3d 664...... 28 27 Village ofLaguna Beach, Inc. v. Board ofSupervisors 28 (1982) 134 Ca1.App.3d 1022...... 20
iv OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007)40 Cal.4th 412...... 10, 27 2 Watsonville Pilots Assn. v. City of Watsonville 3 (2010) 183 Ca1.App.4th 1059...... 22 4 STATUTES 5 I4 CAL. CODE REGULATIONS(CEQA GUIDELINES 6 Section15000 et seq ...... 10 Section15041 ...... 22 7 Section 15063(a)(3)...... 24 Section15088(c) ...... 28 8 Section 15091(a)(3)...... 12, 18 ...... 12 9 Section15091(b)...... Section15124(b)...... 16 10 Section15126.6 ...... 18 Section 15126.6(a) ...... 11, 18, 20, 22 11 Section15126.6(b)...... 22 Section15126.6(c) ...... 20 12 Section 15126.6~~~1)...... 18 28 13 Section15204(a) ...... :. Section15364 ...... 12 14 Section15384(a) ...... 10 Section15385 ...... 27 15 Appendix G of the CEQA Guidelines ...... 23, 24, 25 16 PUBLIC RESOURCES CODE et seq...... passim 17 Section21000 Section21061.1 ...... 12 18 Section21068.5 ...... 27 Section21080(e)(1)...... 24 19 Section21081.5 ...... 12 Section 21081(a)(3)...... 12, 16 20 Section21091(d)...... 27 ...... 26 21 Section21167 ...... Section21168.5 ...... :...... 10 22 Section21177(a) ...... 24
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v OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 INTRODUCTION
2 Respondent City of Albany( "City")and Real Party in Interest The Regents of the
3 University of California( "The Regents")(collectively, "Respondents") hereby oppose the petition
4 filed by Petitioners Eric Larsen and Stefanie Rawlings( "Petitioners") challenging the City's
5 certification of the Environmental Impact Report( "EIR")for the University Village at San Pablo
6 ~~ Avenue( "Project") under the California Environmental Quality Act, Public Resources Code
7 section 21000 et seq.( "CEQA").
8 The Project in this case is the City's approval of The Regents' application for development
9 of a 5.3-acre site with a 55,000 square-foot Whole Foods market, or similar full service grocery
10 store, 175 units of senior housing and 28,000 square feet of retail space. The Project is a
11 component of a larger, 77-acre area University Village Master Plan that The Regents approved in
12 1998 and amended in 2004( "2004 Master Plan") pursuant to their own EIR. Notably, the
13 University's proposed development does not include the seven-acre property adjacent to the
14 Project site known as the Gill Tract, which is owned by The Regents and has been used for
15 agricultural research.
16 The City's administrative and environmental review process for the Project was extremely
17 lengthy. As demonstrated by the record, The Regents were very responsive and substantially
18 revised the Project in response to comments by the City and the public. The end result was a
19 Project that received comprehensive environmental review, that was thoroughly aired and vetted
20 all concerns, and a Project that has significant benefits to the City and the community.
21 About four and a half years into this five-year process, and after countless City and
22 University sponsored public meetings to discuss the Project, about 200 supporters of the "Occupy
23 the Farm" movement marched to the Gill Tract and set up camps without permission and began
24 planting crops. Petitioners are members of the Occupy the Farm movement. They did not
25 comment on the Draft EIR for the Project during CEQA's public comment period and only came
26 into the process at the very end. They repeatedly argue that the City violated CEQA by not
27 ~ analyzing the impacts of the Project on the agricultural research field at the Gill Tract, even
28 ~ though the Project does not propose any changes to that field whatsoever. Petitioners' arguments
OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 largely miss the point and wholly fail to establish any violation of CEQA.
2 II. SUMMARY OF ARGUMENT
3 Petitioners mischaracterize the record and the scope of the project at issue. Petitioners cite
4 ~~ factual details about the Project site dating back to the 1700s, but wholly ignore the scope of the
5 ~~ Project before the City, and its place in the larger Master Plan project previously approved and
6 ~~ analyzed by The Regents. The 2004 Master Plan and EIR already provided for and analyzed The
7 Regents' plans for development of the Gill Tract. The time to attack that EIR or approval is long
8 barred by the statute of limitations.
9 As to the Project itself, Petitioners disregard copious project-specific evidence that
10 ~ supports the EIR's conclusions. As such, Petitioners' arguments fail, since CEQA requires a
11 petitioner to fairly portray all the evidence in the record. Additionally, one of Petitioners'
12 arguments is barred for failure to exhaust administrative remedies.
13 Petitioners' arguments also fail on the merits. First, Petitioners argue that the City failed to
14 ~ adopt the "Existing Zoning" alternative analyzed in the EIR instead of the Project. The Existing
15 Zoning alternative contained a reduced market of 15,000 square feet and other reduced
16 development. Contrary to Petitioners' assertion, the City's rejection of this alternative was well
17 supported by policy reasons and substantial evidence in the record. In this respect, the courts have
18 been clear that it is the role of the decision-maker, the City Council in this case, to balance the
19 numerous competing and necessarily conflicting interests inherent in considering alternatives to a
20 project, and that it is wholly improper for the courts to second guess that policy decision.
21 Second, Petitioners argue that the City failed to analyze a reasonable range of alternatives,
22 specifically, a "reduced market" alternative proposed by the public. However, Petitioners ignore
23 that the EIR did analyze the Existing Zoning alternative, which contained a reduced 15,000
24 square-foot market. Nothing in CEQA requires the City to analyze endless variations of the
25 Project, or alternatives to individual components of the Project.
26 Third, Petitioners argue that the City failed to analyze the impact of the Project on the
27 agricultural research field at the Gill Tract. There is substantial evidence in the record supporting
28 the City's determination that the Project will not have a significant impact on agricultural
2 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 resources, which is all that is required for the Court to uphold the City's decision. Petitioners'
2 belated attack on prior decisions regarding the Gill Tract are without merit.
3 Fourth and finally, Petitioners argue that the City failed to adequately respond to
4 comments on the Draft EIR. The record clearly shows that the City adequately responded to all of
5 the environmental comments raised. Petitioners, as Occupy the Farm members who came late to
6 ~ ~ the process, have no comments of their own to cite to.
7 III. STATEMENT OF FACTS
8 A. The Project.
9 The Project is located on a 5.3-acre site within University Village, a 77-acre area owned by
10 the University and located entirely within the city limits of Albany. (AR 204, 8286.) The Project
11 site is located on two separate "blocks"(Block A and B) within the University Village
12 development. Block A is approximately 2.8 acres and would include the development of a 55,000
13 ~ square-foot Whole Foods market, or similar full-service grocery store, and an associated parking
14 lot. (AR 204, 239.) Block B is approximately 2.5 acres and would include a 175-unit senior
15 housing facility and 28,000 square feet of retail space. (AR 204, 239.)
16 As an autonomous state institution, land use decisions of the University that support the
17 University's educational mission are exempt from local land use regulations. However, because
18 the Project is outside the scope of the University's educational mission, the Project is subject to
19' the City's land use regulations. (AR 205.)
20 B. In 1998, The Regents Approved a Master Plan for the Larger University Village Project and Certified a Focused EIR. 21
22 The Project is part of the third step in The Regents' plan to develop the larger University
23 Village project. (AR 204-205.) In January 1998, The Regents approved the University Village &
24 Albany/Northwest Berkeley Properties Draft Master Plan( "Master Plan") and certified the
25 Focused Environmental Impact Report( "1998 Master Plan EIR")that evaluated the potential
26 environmental effects caused by the Master Plan's implementation. (AR 204-205, 9889-9895.)
27 ~ The Master Plan identified the smaller Project site as an economic development opportunity for
28 private commercial development. (AR 204-205, 4369, 4386.)
3 OPPOSITION TO PETITION FOR WRIT OF MANDATE As described in the 2004 Master Plan EIR, the Gill Tract was an approximately 15-acre
2 ~ ~ tract of land, which had been used by the UC Berkeley College of Natural Resources(CNR). (AR
3 ~~ 8315. See AR 8304 [location of Gill Tract shown in 1988 Master Plan].) Approximately five
4 acres within the southern portion of the tract were previously developed, with ten research
5 structures and the former residence of the Gill family. (AR 8315.) Village Creek flows above
6 ~~ ground on the northern edge of the Gill Tract from San Pablo Avenue to Jackson St. (AR 8332-
7 8333.) As described in the 2004 Master Plan EIR, approximately seven acres of the northeast
8 section of the Gill Tract were used by the CNR as an academic reserve for agricultural
9 experiments. (AR 8315.) "Active agricultural research is confined to these acres and no other
10 agricultural research land use surrounds the site or is within the City." (AR 8315.) The remaining
11 acreage was a stand of pine trees, which were removed several years ago due to disease. A good
12 visual depiction of the Gill Tract, and the breakdown of the various uses within the Gill Tract, is
13 contained in the 2004 Master Plan EIR at AR 8349.
14 Accordingly, references in this brief to the "Gill Tract" are to the larger 15-acre parcel.
15 The seven acres of the northeast section of the Gill Tract that have historically been used for
16 agricultural research will hereafter be referred to as the "Gill Tract Agricultural Research Field."
17 Petitioners refer to this 7-acre site as the "seven-acre farm" throughout their brief, even though
18 "farm" is not an accurate description of the agricultural research uses on the site.
19 The Master Plan stated that the Gill Tract would be an academic reserve site, with no
20 ~ intensification of existing uses or new uses anticipated. (AR 4369.) The 1998 Master Plan EIR
21 provided that the Gill Tract would continue to be used for teaching and research, and would retain
22 its current use as an academic site. (AR 4387.)
23 C. In 2004, The Regents Amended the Master Plan for the Larger University Village Project and Certified a Subsequent Focused EIR. 24
25 In 2004, The Regents amended the Master Plan and certified the Subsequent Focused EIR
26 for the University Village &Albany/Northwest Berkeley Properties Master Plan Amendments
27 ("2004 Master Plan EIR"). (AR 205, 8248.) In 2000, the University had completed Step 1 of the
28 ~ Master Plan, which replaced most of the 1940s-era housing units and a portion of the 1960s-era D OPPOSITION TO PETITION FOR WRIT OF MANDATE ~~ units with 392 new student family units. (AR 8287, 9890.) the redevelopment of the ►7 The Amended Master Plan described Steps 2 and 3 to complete 3 ~~ University Village site to replace the remaining housing units with new student family housing,
4 ~ while Step 3 would redevelop the 26 acres fronting on San Pablo Avenue as a mixed-use project
5 ~ with student and faculty housing, retail development, open space, and community and recreational
6 ~ facilities. (AR 8287, 8294, 9890.)
7 The Amended Master Plan also called for demolition of the existing facilities and
8 redevelopment of the Gill Tract for housing, open space, and recreational uses. (AR 9890.) The
9 2004 Master Plan EIR described this proposed redevelopment of the Gill Tract. (AR 8288, 8292,
10 8298, 8315.) The 2004 Master Plan EIR noted that many commenters urged the use of the Gill
11 Tract for agricultural purposes due to its then-current use for agricultural research and its past
12 agricultural use. (AR 8315.)
13 In response to these concerns, that EIR discussed the history of the site and, as required
14 under CEQA, assessed the potential impacts to agricultural resources, as defined by the California
15 Department of Conservation's Farmland Mapping and Monitoring Program( "FMMP"). (AR
16 8315-8318.) The 2004 Master Plan EIR described that the 2000 FMMP designated the entire site
17 (and all other lands in Albany and West Berkeley, except for historic land fills and waters of the
18 bay) as "Urban and Built-Up Land." (AR 8317.) The cultivated land on the Gill Tract was
19 considered an institutional use, as it was used by the University for academic research purposes.
20 (AR 8317.) It concluded that conversion of the Gill Tract would result in no impact to agricultural
21 ~ resources under CEQA. (AR 8317-8318.)
22 The Regents received extensive public comments on the 2004 EIR, including numerous
23 form letters and petitions expressing a desire for preservation of the Gill Tract for agricultural-
24 related education and community activities. (AR 9890, 9892-9893.) In 2004, the Regents
25 certified the 2004 Master Plan EIR and approved the Amended Master Plan. (AR 9889-9895.)
26 Those documents are beyond attack.
27 D. The Project Does Not Include the Gill Tract Agricultural Research Field.
28 The Project is within the southern five acres of the Gill Tract south of Village Creek that
5 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~~ contained research structures and the Gill House. (AR 239, 2436.) As the Project is bounded by
2 Village Creek to the north, no part of the Project will occur on the Gill Tract Agricultural Research
3 ~~ Field. The Draft EIR for the Project describes Block A of the Project site as being approximately
4 2•g acres and being bounded by Village Creek to the north, San Pablo Avenue to the east, Monroe
5 ~~ Street to the south, and the Gill Tract. (AR 239. See AR 236 [showing Project site within larger
6 University Village]; AR 242 [Project Conceptual Site Plan]; and AR 398 [northern Project
7 boundary in relation to Village Creek]. See also AR 8305-8307 [2004 Amended Land use Plan,
8 ~ Conceptual Site Plan and Site Plan Detail].) At the time the Draft EIR was prepared for the
9 Project, the structures on the southern five acres of the Gill Tract were vacant and scheduled for
10 demolition in the summer of 2009. (AR 238.) The structures were demolished in 2009. (AR 238,
11 ~ 1655-1657.) The Gill House was scheduled to be relocated or demolished prior to the initiation of
12 the Project. (AR 239.)
13 As was clearly and repeatedly stated throughout the City's environmental review process
14 ~ for the Project, the Project does not include the Gill Tract Agricultural Research Field. (AR 144,
15 1834, 1836, 2132-2133, 2436, 2508-2514, 3217, 3387-3388, 3883-3884, 4004, 4019.) Impacts
16 relating to the demolition of the existing structures on the Gill Tract were evaluated in The
17 Regents' 2004 Master Plan EIR, and are not part of the Project. (AR 144.) The Project does not
18~ include any changes to the Gill Tract Agricultural Research Field. (AR 144.)
19'I E. The City's EIR for the Project.
20 On March 31, 2008, the City circulated a Notice of Preparation of an EIR for the Project.
21 (AR 7, 1562.) On Apri122, 2008, the City held a publicly noticed scoping session to receive
22 public input on the scope of the EIR. (AR 7, 1562.) The EIR focused on the areas that were
23 identified to have potentially significant impacts, including transportation, air quality, global
24 climate change, noise, biological resources, and hydrology and water quality. (AR 206.)
25 The City evaluated other topics in an Initial Study/Environmental Checklist and
26 determined that the Project would not cause significant impacts related to these topics. (AR 206,
27 154-155.) The Initial Study concluded that the Project would not result in a significant impact to
agricultural resources. (AR 154-155, 206, 439.) As authorized by CEQA,the City discussed
0 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 these topics in the "Effects Found Not to Be Significant" section of the EIR. (AR 206, 439.)
2 The EIR described the Project objectives as including: locating amixed-use project on the
3 San Pablo Avenue corridor within Block B of the Project site; building a grocery store within the
4 ~~ San Pablo Avenue frontage of University Village located within Block A of the Project site; and
5 ~~ providing senior housing. (AR 241.) The project objectives were further established by the
6 proposed size of the Project, i.e., a 55,000 square foot full-service grocery store, 175 units of
7 senior housing and 28,000 square feet of retail development. The EIR also references The
8 Regents' objectives that are detailed in the University Village Master Plan. (AR 241.) The EIR
9 analyzed three alternatives to the Project: (1) The No Project alternative;(2) The Existing Zoning
10 alternative; and (3) The Reduced Residential alternative. (AR 210.)
11 On July 2, 2009, the City released the Draft EIR. (AR 8, 197, 1562.) The Draft EIR was
12 circulated for the CEQA-mandated 45-day comment period, from July 2, 2009 through August 17,
13 2009. (AR 8, 1563.) However, at the request of members of the public, the City extended the
14 comment period for an additiona149 days, until October 5, 2009. (AR 1563, 1640.) The Planning
15 Commission held a public hearing on the Draft EIR during the comment period, on July 28, 2009.
16 (AR 1563.) The City received six comment letters from State and local agencies, and 31 letters
17 from organizations and individuals during this period. (AR 1563.)
18 In February 2011, the City published the Final EIR, which included the City's response to
19 ~ comments. (AR 1558-1848.) The Final EIR included a letter from The Regents, which repeated
20 that the demolition of facilities located on the Gill Tract was a separate project, and the City's
21 confirmation of the same in response. (AR 1655, 1656-1657.) The City responded to all other
22 comments received on the Draft EIR. (AR 1558-1848.)
23 F. Project Proceedings.
24 The administrative process for the Project took five years. The Planning Commission held
25 14 public hearings on the Project, beginning on November 13, 2007 and ending on June 27, 2012.
26 (AR 2750-2754, 2832-2840, 2904-2910, 2945-2953, 2993-2996, 3031-3035, 3077-3081, 3160-
27 3165, 3262-3264, 3312-3316, 3445-3457, 3540-3548, 3722-3740, 3756-3780.) The City Council
28 held six public hearings on the Project, beginning on February 19, 2008 and ending on July 16,
7 OPPOSITION TO PETITION FOR WRIT OF MANDATE ~~ 2012. (AR 2820-2831, 3365-3375, 3593-3605, 3663-3671, 3869-3876, 4066-4076.)
2 Both the City and members of the public had considerable input on the Project. The
3 ~~ Regents were very responsive in modifying the Project in response to comments. The Regents
4 ~~ changed the Project from multifamily housing to senior housing "in response to requests from the
5 school district and the city that the project be a senior project to meet the needs in the community
6 as well as not to impact the schools." (AR 3324.) In addition, The Regents also:
7 • removed parking structures and placed most of the parking below-ground;
8 • switched the senior housing and the market site to allow for better interface with
r'~ Village Creek and Cordonices Creek;
• provided access to and created trails along both creeks;
• added bike-friendly measures and bike paths for the Project;
• set the tallest portions of the Project back from San Pablo Avenue; and
• scaled back the size of the Whole Foods approximately 15% to 20%.
14 ~(AR 2357-2359, 3324, 3479-3480, 3618-3624, 3626-3627, 3884-3885.)
15 The Regents also made some significant additional refinements in response to City Council
16 comments, including a commitment to place a priority for Albany residents on a portion of the
17 senior living units, and an additional commitment by The Regents to the Albany Little League.
18 (AR 3885.) In addition, the Project is projected to provide $466,156 in total annual revenues to
~•l the City's General Fund. After expenditures for the Project, the net annual fiscal surplus to the
20 I City from the Project will be $204,442. (AR 2138-2139.) This amount represents a significant
21 fiscal benefit to the City that will help sustain services throughout the City. (AR 2217, 2358,
22 2361, 3326, 3397 3383, 3627-3628.) The Project will also provide 320 new jobs in the City,
23 which is aseven-percent increase to the City's employment base. (AR 3177-3178, 3481.)
24 The other significant benefits of the Project to the City include significantly transforming
25 ~ this portion of the City, revitalizing the southern gateway to the City, providing an economic
26 catalyst for San Pablo Avenue and connecting the University into the City. (AR 2217, 2358.)
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8 OPPOSITION TO PETITION FOR WRIT OF MANDATE G. The "Occupy the Farm" Movement at the Gill Tract Agricultural Research Field. _►7 3 After 16 public hearings on the Project and completion of the EIR, the "Occupy the Farm"
4 movement suddenly emerged as part of the process for the Project at the Planning and Zoning
5 Commission's Apri124, 2012 public hearing. (AR 3744.) As described by members of the
6 movement, about 200 activists marched to the Gill Tract and decided to plant crops there. (AR
7 3744.) This is the first time the Petitioners commented at any of the hearings on the Project. (AR
8 3742-3744, 3748.) Petitioners expressed their support for the Occupy movement, and expressed
9 their opinion that the farm could be a wonderful thing for Albany. (AR 3742-3744, 3748. See
10 also AR 3811-3812, 3814-3815 [requesting that the City rezone the Gill Tract as agricultural].) At
11 the remainder of the public hearings, some members of the public, including Petitioners, continued
12 to demand establishing a farm on the Gill Tract Agricultural Research Field. (See AR 3895-3980,
13 4089-4090, 395 [at City Council meeting, member of public distributing jars of pickles made from
14 harvest at Occupy farm].)
15 The City and The Regents repeatedly stated that the Gill Tract Agricultural Research Field
16 was not part of the Project and confirmed that the Project did not include or impact the Gill Tract
17 Agricultural Research Field. (AR 144, 1834, 1836, 2132-2133, 2436, 2508-2514, 3217, 3387-
18 3388, 3783, 3880, 3883-3884, 4004, 4019.) The City also reported that, because the Gill Tract is a
19 University research facility, it was not subject to the City's land use authority. (AR 3859, 4021.)
20 Finally, members of the public who had been involved with the Project from the beginning also
21 complained that the Occupy members were coming in at the last minute and raising concerns that
22 were completely unrelated to the Project in order to leverage their demands to The Regents
23 concerning the Gill Tract Agricultural Research Field. (AR 3809, 3977-3979.)
24 H. The City Council Certifies the EIR and Approves the Project.
25 On July 9, 2012, the City Council certified the EIR and approved the Project. (AR 7-52,
26 ~ 53-142.) This lawsuit followed.
27 I IV. STANDARD OF REVIEW
28 "Where an EIR is challenged as being legally inadequate, a court presumes a public
9 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 agency's decision to certify the EIR is correct, thereby imposing on a party challenging it the
2 burden of establishing otherwise." (Sierra Club v. City of Orange (2008) 163 Ca1.App.4th 523,
3 ~~ 530.) To establish noncompliance in a CEQA proceeding,"an opponent must show `there was a
4 ~~ prejudicial abuse of discretion'(§ 21168.5), which occurs when either `the agency has not
5 proceeded in a manner required by law or if the determination or decision is not supported by
6 substantial evidence' (ibid.)." (Ibid. See generally, Vineyard Area Citizensfor Responsible
7 Growth, Inc. v. City ofRancho Cordova (2007)40 Ca1.4th 412, 426[ "Vineyard"].)I
8 "In reviewing for substantial evidence, the reviewing court `may not set aside an agency's
9 approval of an EIR on the ground that an opposite conclusion would have been equally or more
10 reasonable,' for, on factual questions, our task `is not to weigh conflicting evidence and determine
11 who has the better argument.' [Citation.]" (Id. at 435.) The court does not review the correctness
12 of an agency's ultimate environmental conclusions, but only whether its findings and decisions are
13 supported by substantial evidence in the record. (Citizensfor Goleta Valley v. BoaNd of
14 Supervisors (1990) 52 Ca1.3d 553, 564( "Goleta II"); Laurel Heights Improvement Assn. v.
15 Regents ofthe University ofCalifornia (1988)47 Cal.3d 376, 392[ "Laurel Heights 1"].)
16, Substantial evidence is "enough relevant information and reasonable inferences from this
17 ~ information that a fair argument can be made to support a conclusion, even though other
18 ~ conclusions might also be reached." (Guidelines § 15384(a).)
19 Petitioners inappropriately seek to transform the highly deferential "substantial evidence"
20 standard of review appropriate here into a "de novo" standard, by arguing that the EIR fails to
21 meet CEQA's informational requirements. This should be rejected. When challenging the
22 evidentiary basis for an EIR's conclusions, a project opponent cannot obtain a more favorable
23 standard of review by arguing that the EIR failed to disclose required information, and therefore
24 the lead agency has not proceeded in a manner required by law. (Barthelemy v. Chino Basin Mun.
25 Water Dist.(1995) 38 Cal.App.4th 1609, 1620.) Because Petitioners' challenges to the EIR are
26
27 1 All subsequent statutory references are to the Public Resources Code unless otherwise indicated. The "Guidelines" are CEQA Guidelines, 14 Cal. Code Regulations §§ 15000 et seq. 28
10 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 attacks on the evidentiary basis for the City's determinations, they are reviewed under the
2 substantial evidence standard. (See Oakland Heritage Alliance v. City ofOakland (2011) 195
3 Cal.App.4th 884, 898; California Native Plant Society v. City ofSanta Cruz(2009) 177
4 Ca1.App.4th 957, 986-987( "GNPs").)
5 The party "challenging an EIR for insufficient evidence must lay out the evidence
6 ~~ favorable to the other side and show why it is lacking. Failure to do so is fatal." (Defend the Bay
7 v. City oflrvine (2004) 119 Ca1.App.4th 1261, 1266.) Petitioners do not accurately describe the
8 evidence here. Indeed, they cite to only 70 pages out of a 15,312-page record.
►'. V. ARGUMENT 10 A. Petitioners Failed to Meet Their Burden of Showing that the City Did Not Adopt a Feasible Alternative or Justify Its Rejection of the Alternative As 11 Infeasible.
12 First, Petitioners argue that the City abused its discretion by rejecting an environmentally
13 ~ superior alternative without a sufficient basis. Petitioners are wrong. CEQA's requirements for
14 the alternatives analysis and findings are well established, and were recently summarized by the
15 ~ court in CNPS, supra, 177 Ca1.App.4th at 980-982.
16 "CEQA requires that an EIR, in addition to analyzing the environmental effects of a
17 proposed project, also consider and analyze project alternatives that would reduce adverse
18 environmental impacts." (In re Bay-Delta etc. (2008)43 Ca1.4th 1143, 1163( "In re Bay-Delta").)
[L] Guidelines section 15126.6(a) provides that an EIR "shall describe a range of reasonable
20 alternatives to the project, or to the location of the project, which would feasibly attain most of the
21 basic objectives of the project but would avoid or substantially lessen any of the significant effects
22 of the project, and evaluate the comparative merits of the alternatives." Analysis of alternatives is
23 ~ evaluated against a rule of reason. (GNPs, supra, 177 Cal.App.4th at 980, citations omitted.) It is
24 ~ Petitioners' burden to demonstrate that the alternatives analysis is deficient. (Id. at 987-988.)
25 1. The City Is Only Required to Analyze Feasible Alternatives.
26 "In determining the nature and scope of alternatives to be examined in an EIR, the
27 ~ Legislature has decreed that local agencies shall be guided by the doctrine of `feasibility."'
28 (GNPs, supra, 177 Ca1.App.4th at 981, citing Goleta II, supra, 52 Ca1.3d at 565.) "An EIR need
11 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~~ not consider ... alternatives that are infeasible. [Citation omitted.] As statutorily defined,
2 `Feasible' means capable of being accomplished in a successful manner within a reasonable period
3 of time, taking into account economic, environmental, social, and technological factors." (GNPs,
4 ~~ supra, 177 Ca1.App.4th at 981, citing § 21061.1; see also Guidelines, § 15364.) Thus,"[w)here an
5 EIR has identified significant environmental effects that have not been mitigated or avoided, the
6 ~~ agency may not approve the project unless it first finds that `[sJpecific economic, legal, social,
7 technological, or other considerations ... make infeasible the mitigation measures or alternatives
8 ~ identified in the environmental impact report."'(Ibid, citing § 21081, subd. (a)(3); Guidelines, §
9 15091, subd.(a)(3).)
10 "If the agency finds certain alternatives to be infeasible, its analysis must explain in
11 ~ meaningful detail the reasons and facts supporting that conclusion. The analysis must be
12 sufficiently specific to permit informed decision-making and public participation, but the
13 requirement should not be construed unreasonably to defeat projects easily..." (Id. at 982.) The
14 infeasibility findings must be supported by substantial evidence. (Ibid, citing § 21081.5;
15 Guidelines, § 15091, subd.(b).)
16 2. The City's Rejection of the Existing Zoning Alternative Was Properly Based On Policy Considerations and Supported By Substantial 17 Evidence In the Record.
18 Petitioners challenge the City's rejection of the Existing Zoning Alternative. The EIR
19 describes the Existing Zoning Alternative as complying with the existing zoning on the Project
20 site. (AR 430, 432-435.) This alternative would include a 15,000 square-foot grocery store along
21 the San Pablo Avenue frontage on Block A. (AR 430.) Block B would include two buildings: (1)
22 a mixed-use building with 16,000 square feet of retail on the ground floor and senior living units
23 on the second floor that fronts on San Pablo Avenue; and (2) a building with senior housing that
24 fronts on 10th Street. (AR 430.) Combined, the buildings would include 70 senior housing
25 dwelling units. (AR 432.) In comparison, the Project provides fora 55,000 square-foot full-
26 service grocery store on Block A, and a 175-unit senior housing facility and 28,000 square feet of
27 retail space on Block B. (AR 204, 239.)
28 The EIR provides that the Existing Zoning Alternative would meet most of the Project
12 OPPOSITION TO PETITION FOR WRIT OF MANDATE objectives, but would provide significantly less retail and grocery square footage and fewer
2 dwelling units. (AR 433.) The EIR analyzes the potential impacts of the Existing Zoning
3 ~~ Alternative to the Project. (AR 433-435.) The Existing Zoning Alternative would result in a
4 significant reduction in development on the Project site. (AR 433.) It would generate about 70
5 percent fewer trips than the proposed Project during the weekday AM and PM and Saturday peak
6 hours, but would still continue to cause some significant unavoidable transportation-related
7 impacts. (AR 433-435.) The Draft EIR finds the Existing Zoning Alternative to be the
8 environmentally superior alternative. (AR 436.)
r. Lead agencies are permitted to reject alternatives as infeasible on policy grounds. (GNPs,
10 supra, 177 Cal.App.4th at 1001.) In CNPS,the city approved a master plan which would create a
11 multi-use, paved trail system for acity-owned greenbelt property. The city's EIR analyzed four
12 alternatives, including the environmentally superior alternative of unpaved trails. The city rejected
13 the alternatives as infeasible based on the city council's determination that they were undesirable
14 from a policy standpoint because they failed to achieve what the council regarded as the primary
15 objectives of the project. The petitioners challenged this finding on the grounds that the
16 alternatives were not "truly infeasible" but, rather, the city just did not like them. (Id. at 1000.)
17 The court upheld the city's rejection of the alternatives, finding that petitioners' challenge
18 "represents nothing more than a policy disagreement with the City." (Id. at 1001.) The court
19 explained that "`feasibility' under CEQA encompasses `desirability' to the extent that desirability
20 is based on a reasonable balancing of the relevant economic, environmental, social, and
21 technological factors." (GNPs, supra, 177 Cal.App.4th at 1001, citing City ofDel Mar v. City of
22 San Diego (1982) 133 Ca1.App.3d 401, 417.) The court held that "an alternative that is
23 impractical or undesirable from a policy standpoint may be rejected as infeasible," and,
24 additionally, an alternative "may be found infeasible on the ground it is inconsistent with the
25 project objectives as long as the finding is supported by substantial evidence in the record."
26 (GNPs, supra, 177 Cal.App.4th at 1001, citations omitted.)
27 The court explained that, in making its infeasibility findings, the city determined how the
28 ~ numerous competing and necessarily conflicting interests should be resolved. The court held that
13 OPPOSITION TO PETITION FOR WRIT OF MANDATE "[a]t bottom, appellants' disagreement is with the nature of the balance struck between those 2 interests.... [and] it is wholly improper for [the courts] to arrogate to ourselves a policy decision 3 which is properly the mandate of the City." (Id. at 1001-1002, citations omitted; see also Del Mar,
4 supra, 133 Ca1.App.3d at 416-417.) 5 Here, likewise, in certifying the EIR, the City Council made an express finding that the
6 Existing Zoning Alternative "does not meet the project objectives. It would provide significantly 7 less retail and grocery square footage, and fewer dwelling units." (AR 22.) The City's finding is 8 based on permissible policy considerations and is supported by substantial evidence in the record.
9 The City's stated reasons for rejecting this alternative were: 10 Although this alternative would reduce some environmental impacts, such as trip- generation and circulation impacts, it would not fully reduce any potentially 11 significant impacts, and it would not meet the project proponent's objectives for the proposed project, since it would provide significantly less retail and grocery space. 12 The programs and activities of the mixed use development at University Village provide numerous economic, social, environmental and other benefits to the City of 13 Albany that this alternative would not provide, or would provide to a lesser extent than the project. The project better promotes the goals of the General Plan, 14 including upgrading commercial development along San Pablo Avenue in order to expand the City's economic base. It fulfills the General Plan goal that future 15 redevelopment of the University of California lands is compatible with the City's long-term land use goals, including mixed use development along the San Pablo 16 Commercial Corridor. In addition, this alternative would not provide the same level of economic benefits to the City in terms of potential increased tax revenues 17 and broadened employment opportunities as the proposed project. This alternative is examined as required by CEQA Guidelines Section 15126.6(e), even though it 18 would not achieve the project objectives. (AR 22-23.)
19 Thus, the City rejected the Existing Zoning Alternative because it did not meet The 20 Regents' project objectives of a 55,000 square-foot full-service grocery store, 175 units of senior 21 housing and 28,000 square feet of retail development. The City made a policy decision to approve
22 the larger level of development proposed in the Project rather than the Existing Zoning
23 Alternative's significantly less retail and grocery square footage, and fewer dwelling units. This 24 type of policy decision is expressly authorized in CEQA. (GNPs, supra, 177 Cal.App.4th at 1001-
25 1002; Del Mar, supra, 133 Ca1.App.3d at 416-417.)
26 Finally, there is overwhelming substantial evidence in the record supporting the City's 27 policy reasons for preferring the Project over the Existing Zoning Alternative. The Project
28 provides economic benefits to the City's General Fund and employment base. (AR 2217, 2358,
14 OPPOSITION TO PETITION FOR WRIT OF MANDATE 2361, 3177-3178, 3326, 3397, 3383, 3481, 3627-3628.) The evidence demonstrated that the
2 Project represents a significant transformation for this portion of the City. (AR 2217.) The
3 Project is located at the southern gateway to the City on San Pablo Avenue, making it one of the 4 few sites in the City that is suitable for larger scale future mixed-use development. (AR 2217.) 5 The Project will serve as a landmark for the community, and an economic development catalyst 6 ~~ for San Pablo Avenue. (AR 2217, 2358.) The Project will also help connect University Village
7 into the fabric of the City. (AR 2534.) This evidence is all that is required for the Court to uphold the City's infeasibility finding. (GNPs, supra, 177 Ca1.App.4th at 1003[ "The extensive record in
9 this case reflects careful consideration of the alternatives' feasibility, with the City's policy choices 10 backed by substantial evidence."].) 11 3. Petitioners' Arguments Attacking the City's Infeasibility Findings Are Without Merit. 12 Petitioners attack the City's findings rejecting the Existing Zoning Alternative as infeasible 13 on several grounds, all of which fail. First, Petitioners misconstrue the City's rejection of the 14 Existing Zoning Alternative as a finding that the Existing Zoning Alternative is economically 15 infeasible. (See POB, pp. 11-12.) The problem with Petitioners' argument, however, is that the 16 City did not reject the Existing Zoning Alternative on the grounds that it was economically 17 infeasible, and Petitioners cite to no such finding in the record. Nor is there any statement by The 18 Regents in the record that the Existing Zoning Alternative is economically infeasible. Once again, 19 the language of the court in CNPS,supra, 177 Ca1.App.4th at 1001-1002, is applicable here: 20 This is not a case involving straightforward questions of legal or economic 21 infeasibility. (See, e.g., Uphold Our Heritage v. Town of Woodside (2007) 147 Ca1.App.4th 587, 601 [54 Cal. Rptr. 3d 366][no economic infeasibility]; id. at p. 22 602 [no legal infeasibility].) Arguably, such cases may present brighter lines for judicial review. Whether or not that is so, this much is clear: it is wholly improper 23 for us to "arrogate to ourselves a policy decision which is properly the mandate of the City."(Defend the Bay v. City ofIrvine, at p. 1269.) 24 25 The same result is required here. The City did cite to the economic benefits that the Project
26 would provide to the City, in terms of tax revenues and jobs. However, the fact that the Project 27 will economically benefit the City is not the same as a finding that an alternative is economically 28 infeasible. Rather, economical infeasibility is "evidence that the additional costs or lost
15 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~~ profitability are sufficiently severe as to render it impractical to proceed with the project."
2 ~~ (Citizens of Goleta Valley v. Board ofSupervisors (1988) 197 Ca1.App.3d 1167, 1180-1182.)
3 Here, the City did not find that lost profitability from the Existing Zoning Alternative made that
4 ~~ alternative economically infeasible; rather, it rejected the Alternative on policy grounds.
5 In all the cases cited by Petitioners, economic infeasibility was the only basis for the
6 '~ various agencies' rejection of the respective alternatives. (See Centerfor Biological Diversity v.
7 County ofSan Bernardino (2010) 185 Ca1.App.4th 866, 883 [alternative rejected as economically
8 and technically infeasible not supported by substantial evidence]; Burger v. County ofMendocino
9 (1975) 45 Ca1.App.3d 322, 326-327 [express statement by developer's counsel that alternative not
10 feasible economically not supported by substantial evidence]; Citizens of Goleta Valley, supra,
11 197 Ca1.App.3d at 1181[ "The only finding made by respondent was that the alternative was
12 economically infeasible."]; Sierra Club v. Tahoe Regional Planning Agency, Case 2:12-CV-00044
13 (U.S. Dist. Ct., Eastern District of California) January 4, 2013 Memorandum and Order, p. 48.)
14 Accordingly, those cases do not apply here.
15 Second, Petitioners attempt to dismiss the City's stated reasons for rejecting the Existing
16 Zoning Alternative as using "magic words" rather than analysis. (POB, p. 13.) To the contrary, as
17 set forth above, the City's stated reasons detail the policy considerations for preferring the Project
18 over the alternative. Like the petitioners in CNPS, Petitioners' disagreement is with the nature of
19 the balance struck between the competing interests, which is not reviewable by the courts. The
20 City's policy determination is consistent with the permissible statutory factors (§ 21081, subd.
21 (a)(3)), and justified under relevant case law, including CNPS and Del Mar.
22 Third, without citing to any authority, Petitioners argue that the Project objectives in the
23 EIR must be narrowly construed. They claim that, because the Project objectives refer to a
24 "grocery store" and "senior housing"(AR 241), a grocery store of any size and presumably even
25 one unit of senior housing would meet Project objectives. To the contrary, Guidelines section
26 15124(b) provides that the EIR should include a "statement of the project objectives sou~v the
27 proposed project.... The statement of objectives should include the underlying purpose of the
28 project." (Emphasis added.) Accordingly, the project objectives must be read in light of the
16 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 II project that is actually being proposed by the applicant and analyzed in the EIR. In this case, that
2 means a project with a 55,000 square-foot full-service grocery store, 175 units of senior housing
3 ~ ~ and 28,000 square feet of retail development.
4 The City's counsel explained this point in the record. (AR 4017.) Petitioners purport to be
5 ~~ confused over the purpose of considering alternatives "if a smaller and less impactful project can
6 ~~ be rejected simply because it is smaller and less impactful." (POB, p. 14.) But CEQA allows
7 exactly that — it allows the decision-maker to make the policy decision over what level of
8 development to approve. And the purpose of the alternatives analysis is more than clear —the
9 analysis provides the decision-maker and the public with the comparative information so that it
10 can make an informed decision about the environmental consequences of the project it is
11 considering. Indeed, under Petitioners' theory, an agency could never approve any development,
12 because the no-project alternative of doing nothing is almost always "smaller and less impactful"
13 than building something. Nothing in CEQA requires such an absurd result.
14 Moreover, the EIR's statement of objectives in this case expressly refers to the Regents'
15 objectives detailed in the Master Plan. (AR 241.) As explained in the record, The Regents'
16 "proposed mix of uses on the site is consistent with the University Village Master Plan and [] no
17 changes to the master plan are proposed as part of the project." (AR 1764.)
18 Fourth, Petitioners claim that the EIR's conclusions regarding the Existing Zoning
19 ~ Alternative are inconsistent with the City's ultimate findings in rejecting the alternative and in its
20 Statement of Overriding Considerations. Specifically, Petitioners cite to the EIR's statement that
21 the Alternative meets most of the project objectives(AR 433), and also to the findings and
22 Statement of Overriding Considerations stating that the Alternative does not meet the Project
23 proponents' objectives(AR 22, 2663-2673). There is no inconsistency. The EIR stated that the
24 Existing Zoning Alternative would not meet project objectives because it "would provide
25 significantly less retail and grocery square footage and fewer dwelling units." (AR 433.)
26 More fundamentally, however, Petitioners overlook that there are two different feasibility
27 ~ ~ standards at these two different junctures: (1) in the assessment of alternatives in the EIR and (2)
28 ~ ~ during the agency's later consideration of whether to approve the project. (GNPs, supra, 177
17 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~~ Cal.App.4th at 981.) Notably, "differing factors come into play at each stage." (Ibid, citation
2 ~~ omitted.) "For the first phase--inclusion in the EIR--the standard is whether the alternative is
3 potentially feasible." (Ibid, citing Mira Mar Mobile Community v. City of Oceanside (2004) 119
4 Ca1.App.4th 477, 489; Guidelines, § 15126.6, subd. (a).) `By contrast, at the second phase--the
5 final decision on project approval--the decisionmaking body evaluates whether the alternatives are
6 '~ actually feasible. (See Guidelines, § 15091, subd. (a)(3).) At that juncture, the decision makers
7 may reject as infeasible alternatives that were identified in the EIR as potentially feasible."
8 (GNPs, supra, 177 Ca1.App.4th at 981, italics by court.)
9 Here, as the City explained, the City examined the Existing Zoning Alternative in the EIR
10 ~ in order to comply with the alternatives requirement in Guidelines section 15126.6 "even though it
11 would not achieve the project objectives." (AR 23.) At the preparation of the EIR stage, this
12 alternative was potentially feasible and was included "to provide information to lead agency
13 decision makers to assist in their choices." (AR 1737.) However, under the different standard
14 applicable at the final approval stage, the City properly rejected the alternative as infeasible for
15 failing to meet Project objectives.
16 Thus, Petitioners have failed to meet their burden of showing that the City's rejection of
17 the Existing Zoning Alternative did not comply with CEQA.
18 B. Petitioners Failed to Meet Their Burden of Showing that the EIR Did Not Analyze a Reasonable Range of Alternatives. [L]
20 1. CEQA Requires Analysis of a Reasonable Range of Alternatives.
21 "CEQA establishes no categorical legal imperative as to the scope of alternatives to be
22 analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in
23 light of the statutory purpose." (CNPS, supra, 177 Cal.App.4th at 980, citing Goleta II, at 566.)
24 "An EIR need not consider every conceivable alternative to a project."(Guidelines, § 15126.6,
25 subd. (a).) "Rather it must consider a reasonable range of potentially feasible alternatives that will
26 foster informed decisionmaking and public participation."(Guidelines, § 15126.6, subd. (a).) "No
27 single factor establishes a fixed limit on the scope of reasonable alternatives." (Guidelines, §
28 15126.6, subd.(~(1); CNPS, supra, 177 Ca1.App.4th at 980.)
18 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 The lead agency has discretion to determine how many alternatives constitute a reasonable
2 ~~ range. (Goleta II, supra, 52 Ca1.3d at 566.) The burden is on Petitioners to demonstrate "that the
3 alternatives are manifestly unreasonable and that they do not contribute to a reasonable range of
4 alternatives." (GNPs, supra, 177 Ca1.App.4th at 988, citation omitted.)
5 2. The City Analyzed a Reasonable Range of Alternatives.
6 Here, Petitioners have not met their burden of showing that the range of alternatives in the
7 EIR is unreasonable. The EIR analyzed three alternatives to the Project:
8 (1) The No Project alternative, which assumes the continuation of the existing condition within the Project site. 9 (2) The Existingonin~ alternative, which included development that would 10 comply with the existing zoning on the Project site. This alternative included a 15,000 square-foot grocery store on Block A. On Block B, this alternative included 11 a mixed-use building with 16,000 square feet of retail on the ground floor and senior living units on the second floor, and a second building with senior housing. 12 (3) The Reduced Residential alternative, which would include 85 senior housing 13 units and the same grocery and retail components as the proposed Project. (AR 210.) 14
15 Thus, the City evaluated alternatives that reduced the retail, the grocery store, and the
16 ~ residential components of the proposed project. (AR 430-436, 1764.) The EIR analyzed the
17 ~ anticipated environmental effects of each alternative, with an emphasis on each alternative's
18 relative adverse effects compared to the Project. (AR 430-436.) The City explained that these
19 alternatives "were selected and developed with the aim of reducing or eliminating some of the
20 significant impacts of the proposed project." (AR 1666, 1686, 1737, 1763-1764.)
21 For the No-Project Alternative, impacts relating to transportation, air quality, global
22 climate change, noise, biological resources, and hydrology and water quality would all be reduced
23 compared to the proposed Project. (AR 431-432.) For the Existing Zoning Alternative, impacts
24 relating to transportation, air quality and global climate change would be reduced compared to the
25 proposed Project(AR 433); noise impacts would be slightly greater compared to the Project(AR
26 433-434); and biological and hydrology and water quality impacts would be similar to the Project
27 (AR 434-435). For the Reduced Residential Alternative, impacts relating to traffic, air quality and
28 ~ global climate change would be slightly reduced but largely similar to the Project(AR 435-436);
19 OPPOSITION TO PETITION FOR WRIT OF MANDATE and impacts relating to noise, biological resources, and hydrology and water quality would be
~~ similar to the Project(AR 436).
~~ The City's range of alternatives meets CEQA's requirements for a reasonable range of
4 ~ ~ alternatives. The EIR provides the public and decision-makers with enough information to
5 ~~ compare the Project's merits with a reasonable body of current alternatives. CEQA does not
6 require that agencies consider multiple variations ofreduced-density alternatives. (See Sequoyah
7 Hills Homeowners Assn. v. City ofOakland (1993) 23 Cal.App.4th 704 [agency did not err by
failing to consider second decreased density alternative]); Village ofLaguna Beach, Inc. v. Board
0 ofSupervisors (1982) 134 Ca1.App.3d 1022 [upholding EIR that discussed three reduced-density
10 alternatives and rejecting argument that intermediate density alternative was required].)
11 3. Petitioners' Attacks on the Range of Alternatives Is Without Merit.
12 Petitioners argue that the City erred by refusing to analyze what Petitioners refer to as the
13 "superior citizen proposal" of a Reduced Market Alternative. (POB, p. 15.) Petitioners are wrong.
14 First, an EIR need only discuss a reasonable range of alternatives. (Guidelines
15 § 15126.6(a),(c).) If the EIR discusses a reasonable range, it is not deficient for excluding other
16 potential alternatives. (Cherry Valley Pass Acres &Neighbors v. City ofBeaumont (2010) 190
17 Ca1.App.4th 316, 347-348.) Here, the EIR discusses a reasonable range of alternatives.
18 Second, the Existing Zoning Alternative analyzed in the EIR did include a reduced market
19 ~ from what was proposed in the Project. Specifically, the Project includes a 55,000 square-foot
20 grocery store and the Existing Zoning Alternative examined a 15,000 square foot market. (AR
21 432.) Indeed, this 15,000 square-foot market is precisely the size of the market proposed by the
22 ~ public and relied upon by Petitioners. (POB, p. 17, citing AR 14071 [letter from local grocer
23 expressing interest in opening 15,000 square foot grocery store].)
24 Petitioners complain that they wanted the City to analyze an alternative that included a
25 reduced market of 15,000 square feet, but kept the housing component as described in the Project
26 proposal. (POB, p. 15.) Under Petitioners' argument, the Existing Zoning Alternative was
27 problematic because it also reduced the housing component and the retail component, and the
~:~ Reduced Residential alternative was problematic because it only reduced the housing component
20 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 and kept the market component as described. However, CEQA does not require analysis of
2 components of the project, as compared to the Project in its entirety. CEQA requires only that an
3 ~~ EIR describe alternatives to the proposed project as a whole, and not to the various facets of the
4 project. (GNPs, supra, 177 Ca1.App.4th at 994; I3ig Rock Mesas Property Owners Assn. v. Board
5 ofSupervisors(1977) 73 Ca1.App.3d 218, 227. See also California Oak Foundation v. Regents of
6 ~ Univ. ofCal. (2010) 188 Ca1.App.4th 227, 275 [lead agency considering multi-component project
7 can consider alternatives that reduce or modify some but not all of the individual components].)
8 Moreover, the EIR specifically breaks down the trip generation of the Existing Zoning
9 Alternative by component, so the EIR does provide data regarding the reduced trips for a reduced
10 grocery component, reduced retail component and reduced housing component. (AR 434.) The
11 critical issue is whether the range of alternatives gives the public and the decision-makers "enough
12 of a variation to allow informed decisionmaking." (GNPs, supra, 177 Cal.App.4th at 988, citation
13 omitted.) That variation was clearly provided here.
14 The Final EIR specifically responded to the request to study Petitioners' preferred
15~ alternative and explained that "another alternative with a smaller market but with the full housing
16 component would [not] represent a measurable superior alternative to either the proposed project
17 or the Existing Zoning alternative." (AR 1764.) The Final EIR also explained that the
18 commenter's opinion that such an alternative "should be preferred by the City of Albany" was
19 noted and may be considered by the City's decision makers. (AR 1764.) Obviously, Petitioners
20 prefer what they consider to be the "superior" alternative with a reduced market and the full
21 ~ housing component. However, the ultimate decision over what project to approve is left to the
22 ~ City Council's sound discretion, and cannot be second-guessed by Petitioners in this lawsuit.
23 Petitioners also essentially dismiss the Existing Zoning Alternative as part of the range of
24 alternatives because the City Council ultimately rejected this alternative as infeasible for failing to
25 meet Project objectives. (POB, p. 16, citing AR 21.) Again, however, there is a different standard
compared to the agency's later consideration of ►.7 applied in the EIR's assessment of alternatives as 27 whether to approve the project. (GNPs, supra, 177 Cal.App.4th at 981.)
28 Petitioners also argue that the three alternatives were not analyzed in sufficient detail "to
21 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~ ~ enable cost-benefit comparisons." (POB, p. 15.) However, CEQA requires an EIR to analyze the
2 ~~ environmental impacts of the alternatives compared to the Project, not acost-benefit analysis.
3 ~ (Guidelines, § 15126.6(a),(b).)
4 Petitioners' reliance on Guidelines section 15041 is misplaced. This guideline applies to
5 ~ the agency's approval authority over a project, not the range of alternatives analyzed in the EIR.
6 ~ The City here did not reduce the number of housing units in approving the Project.
7 Finally, Petitioners make the ridiculous assertion that the City limited the EIR to only three
8 alternatives before it prepared the EIR. Petitioners cite to the scope of work prepared by the City's
9 EIR consultant at the very beginning in the process. (POB, p. 18, citing AR 11049.) Nothing in
10 this preliminary document commits the City to only three alternatives or precluded the City from
11 considering other alternatives presented that met the requirements of Guidelines section 15126.6.
12 Moreover, contrary to Petitioners' assertion that the City's environmental consultant, LSA, had
13 never seen the Project site(POB, p. 6), LSA prepared the 2004 EIR for the amendments to the
14 Master Plan. (AR 8253, 8472.)
15 4. Petitioners' Cases Are Distinguishable.
16 Petitioners cite several cases in support of their argument. In Centerfor Biological
17 Diversity, supra, 185 Ca1.App.4th 866, the EIR failed to include an enclosed composting facility
18 as an alternative to the project, an open-air facility. As the evidence showed that enclosed
19 facilities were operating throughout the country, the court held that the county's conclusion that
20 such a facility was economically and technically infeasible was not supported. (Id. at 884.) There
21 are no similar facts here. In Watsonville Pilots Assn. v. City of Watsonville (2010) 183
22 Ca1.App.4th 1059, 1085-1086, the city's EIR for a general plan which contemplated the
23 development of 5,700 additional units of housing did not include any reduced development
24 alternative except for the no-project alternative. Here, the EIR considered two reduced
25 development alternatives, the Existing Zoning Alternative and the Reduced Residential
26 Alternative, in addition to the No-Project Alternative.
27 Finally, Petitioners cite Habitat and Watershed Caretakers v. City ofSanta Cruz(2013)
28 ~ 2013 WL 600510( "HAWC"),for the proposition that the City was required to "analyze an
22 OPPOSITION TO PETITION FOR WRIT OF MANDATE alternative that reduced one aspect of the project; there, a `limited water' alternative[;] here, a
2 Reduced Market alternative." (POB, p. 18.) To the contrary, the provision of water was the entire
3 project in HAWC,not one aspect of the project. The project in that case was an application by a
4 city to LAFCO to approve extension of water services outside of the city's boundaries.
5 Accordingly, nothing in this case requires an agency to look at alternatives to only one aspect of a
6 project, as compared to the project in its entirety.
7 C. Petitioners Failed to Meet Their Burden of Showing that the City Did Not Analyze Agricultural Resources. 8 1. The City's Determination of No Significant Impact on Agricultural 9 Resources Is Supported By Substantial Evidence.
10 The City's Initial Study concluded that the Project would not result in any impact to
11 agricultural resources. (AR 154-155, 206, 430.) In order to assess the significance of agricultural
12 impacts, the Initial Study relied upon the standard set forth in Appendix G of the Guidelines:
13 Would the project ...Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the 14 Farmland Mapping and Monitoring Program of the California Resources Agency, to anon-agricultural use? (Guidelines, Appendix G, II, subd.(a); AR 154.) 15
16 The EIR provides that "[t]he project site is not designated by the Farmland Mapping and
17 Monitoring Program as prime farmland, unique farmland, or farmland of statewide importance."
18 (AR 154, 439.) The EIR further provides:
19 The project site currently consists of vacant parcels and vacant buildings/greenhouses that were once used for agricultural research. There are 20 approximately 7 acres (to the north of the project area) that are used by the College of Natural Resources as an academic reserve for agricultural experiments. 21 Farmland areas of the Gill Tract have been in use for campus research and are not considered prime farmland. Decisions by the University of California as to future 22 use of the Gill Tract would not be affected by implementation of the proposed project. (AR 439.) 23
24 Based on this analysis, the EIR concludes that "[i]mpacts to agricultural resources would
25 ~ be less than significant and are not further analyzed in this EIR." (AR 439.)
26 In response to comments, the City explained that the EIR adequately analyzed agricultural
27 ~ impacts and concluded that there was no significant impact. (AR 1667-1668, 1834.) The Final
28 EIR explained that "[t]he project site does not include land in agricultural production, and the
23 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~~ project site is designated as `Urban and Built-Up Land'. Construction of the proposed project
2 would have no effect on the potential future conversion of prime farmland, unique farmland, or
3 ~~ farmland of statewide importance to non-agricultural uses." (AR 1667.) The Final EIR further
4 ~~ explained that "[t]he project site previously included student housing and research structures, and
5 has not been used to produce agricultural products in recent decades." (AR 1668.)
6 The Initial Study, EIR and Responses to Comments constitute substantial evidence
7 supporting the determination that the Project will not have a significant impact on agricultural
8 resources. (Guidelines, § 15063(a)(3); Friends of"B "Street v. City ofHayward (1980) 106
9 Ca1.App.3d 988, 1003 [initial study constitutes substantial evidence supporting agency's
10 determination].) Moreover, the statements and testimony by City staff and personnel constitute
11 substantial evidence supporting the determination that the Project will not have a significant
12 impact on agricultural resources.( §§ 21080(e)(1); 21082.2(c)[substantial evidence is "fact, a
13 reasonable assumption predicated upon fact, or expert opinion supported by fact."]; Leonoff v.
14 Monterey County Bd. ofSupervisors (1990) 222 Ca1.App.3d 1337, 1354; Gentry v. City of
15 Murrieta (1995) 36 Ca1.App.4th 1359, 1380.) Under the substantial evidence standard, this
16 evidence is all that is required for the Court to uphold the City's determination.
17 Petitioners largely ignore the evidence discussed above, in contravention of their duty to
18 fairly characterize the evidence in the record. (Defend the Bay, supra, 119 Ca1.App.4th at 1266.)
19 2. Petitioners' Attack on the FMMP Standard Is Barred By Exhaustion, Outside the Scope of the Record and Without Merit In Any Event. 20
21 Petitioners challenge the City's reliance on the FMMP standard in Appendix G of the
22 CEQA Guidelines for determining whether the project site is prime farmland, unique farmland, or
23 farmland of statewide importance. Specifically, Petitioners argue that "the FMMP cannot have a
24 monopoly on defining significant agricultural resources under CEQA." (POB, p. 21.)
25 This Court lacks jurisdiction to consider Petitioners' argument on this point because
26 Petitioners failed to exhaust their administrative remedies. A petitioner may not litigate issues that
27 were not fully and fairly presented to the agency before the challenged decision was made. (§
28 21177(a); California Native Plant Society v. City ofRancho Cordova (2009) 172 Ca1.App.4th 603,
24 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~ 615-619; Coalitionfor Student Action v. City ofFullerton (1984) 153 Ca1.App.3d 1194, 1197-
2 ~ 1198.) The "essence of the exhaustion doctrine is the public agency's opportunity to receive and
3 I~ respond to articulated factual issues and legal theories before its actions are subjected to judicial
4 ~ review." (Id. at 1198.) "The requirement of exhaustion is a jurisdictional prerequisite, not a
5 ~ matter ofjudicial discretion." (Tahoe Vista Concerned Citizens v. County ofPlacer (2000) 81
6 ~ Cal.App.4th 577, 589.)
7 Here, Petitioners did not challenge the City's reliance on the FMMP standard during the
8 administrative process for the Project. Neither Petitioners nor anyone else raised this issue in
9 written or oral testimony during the City's administrative proceedings on the Project. Other
10 members of the public did raise the issue of whether the EIR adequately analyzed the impact of
11 the Project on agricultural resources. Notably, in response, the City explained that the Project site
12 is not designated by the FMMP as prime farmland, unique farmland, or farmland of statewide
13 importance. (AR 1667.) Nobody raised the separate issue of whether it was proper for the City to
14' rely on the FMMP standard. Accordingly, the City did not have the opportunity to receive and
15 ~I respond to this issue before its actions were subjected to judicial review. Therefore, this argument
16 is barred and this Court lacks jurisdiction to consider it.
17 Moreover, Petitioners compound their failure to exhaust by submitting new extra-record
18 ~ evidence challenging the FMMP standard with their Opening Brief. Neither the City, nor the
19 Regents, nor the public had the opportunity to consider and respond to this evidence during the
20 lengthy administrative proceedings for the Project. It is far too late for Petitioners to bring it up
21 now. Respondents have filed a separate objection to this improper evidence.
22 Finally, even if Petitioners were not barred from raising this argument, it is without merit.
23 Public agencies have discretion to set standards of significance for use in EIRs, and courts have
24 upheld agencies' use of the standards in Appendix G of the CEQA Guidelines as standards of
25 significance in EIRs. (See Oakland Heritage Alliance v. City of Oakland(2011) 195 Cal.App.4th
26 884, 896; Eureka Citizensfor Responsible Govt. v. City ofEureka (2007) 147 Cal.App.4th 357.)
27 The City's reliance on the Appendix G standard here was proper, particularly given that nobody
28 raised an issue regarding the standard during the administrative process. Petitioners argue that the
25 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 City should have checked to see whether land was covered by the Williamson Act, but ignore that
2 ~~ the City did just that in the Initial Study and reported: "The project site is not zoned for
3 ~~ agricultural use, nor is it under a Williamson Act contract." (AR 154.) This argument fails.
4 3. Petitioners' Piecemealing Argument Is Not Supported By the Record.
5 Petitioners' attack on the City's finding of no significant agricultural impact also fails,
6 because Petitioners are not even talking about the Project site. Rather, Petitioners argue that the
7 Gill Tract Agricultural Research Field adjacent to the Project site "should have been considered as
8 an environmental resource which is significantly threatened by the project's foreseeable future
9 impacts." (POB, p. 22.) However, the Agricultural Research Field is not part of the Project site,
10 nor does the Project propose any development on it. The City and The Regents explained this
11 point over and over again in the administrative process. (AR 144, 1834, 1836, 2132-2133, 2436,
12 2508-2514, 3217, 3387-3388, 3783, 3880, 3883-3884, 4004, 4019.)
13 Petitioners argue that the City's EIR must address all parts of a project, including
14 reasonably foreseeable future consequences that will likely change the scope of the project, citing
15 Laurel Heights I, supra, 47 Cal.3d 376. Petitioners completely miss the point. The Regents
16 already prepared two EIRs addressing development of the entire 77-acre University Village
17 Project, including its proposed development for the Project site and the Gill Tract. (AR 8261,
18 9889-9895.) The proposed development of Gill Tract was a highly controversial issue. (AR
19 9892-9893.) Indeed, the evidence Petitioners cite to support their arguments comes from
20 comments on the 2004 Master Plan EIR and the even-earlier 1998 Master Plan EIR. (POB, p. 22-
21 23, citing AR 9679, 9729, 7637.)
22 The CEQA statute of limitations on the 1998 Master Plan EIR and the 2004 Master Plan
23 EIR have long run, and those documents are beyond attack. (§ 21167.) "[A]s a general rule, once
24 .. an EIR is completed, that decision is protected by concerns for finality and presumptive
25 correctness." (Snarled Traffic Obstructs Progress v. City and County ofSan Francisco (1999) 74
26 Cal.App.4th 793, 797.) Those EIRs were the overall, comprehensive review of the entire Project
27 that is required by CEQA and Laurel Heights 1. The EIR for the Project explains this history of
28 the prior environmental review, and where this Project fits in that history. (AR 1664-1665.)
26 OPPOSITION TO PETITION FOR WRIT OF MANDATE Petitioners cite no authority, and there is none, that would require the City to repeat this
2 ~~ analysis for the larger project. To the contrary, CEQA encourages the "tiering" of environmental
3 review, that is, "the coverage of general matters and environmental effects" in first tier EIRs
4 prepared for broad plans "followed by narrower or site-specific" second tier EIRs, which refer to
5 the earlier, more general EIRs but focus "on the issues specific to the EIR subsequently prepared."
6 ~§ 21068.5; Guidelines, § 15385; Al Larson Boat Shop, Inc. v. Board ofHarbor Comm.(1993) 18 7 Ca1.App.4th 729, 740-741.) Tiering frees agencies from having to "reinvent the wheel" each time
8 an EIR is prepared on one of a series of projects when some of the significant environmental
9 effects could be analyzed at the outset. (Vineyard, supra, 40 Ca1.4th at 429.)
10 In Laurel Heights I, supra, 47 Ca1.3d 376, the University's project was for medical
11 laboratories in 100,000 square feet of a 354,000-square-foot building. The University claimed that
12 it had not formally decided to occupy the entire building, but the Court cited to statements in the
13 record showing that the University did intend to occupy the entire building in the future. The
14 Court held that there was "credible and substantial evidence" that the University's occupancy of
15 the entire building was a reasonably foreseeable consequence of the decision to move into the
16 building. (Id. at 398.) Accordingly, the Court held, the EIR must include and analyze the
17 environmental effects of this reasonably foreseeable future expansion. (Id. at. 396.)
18 Rather than supporting Petitioners' argument, this Project is exactly what the Court in
19 ~ Laurel Heights I envisioned. The Regents analyzed the entire University Village Project in the
20 1998 Master Plan EIR and the 2004 Master Plan EIR, and this Project is part of Step 3 in that
21 larger project. The Project is separate from and does not propose any change regarding the Gill
22 Tract agricultural research field. As summed up by the City's EIR consultant, "[fJar from
23 representing piecemealing, this particular project is exactly, to my mind, how CEQA intended the
24 process to work." (AR 4020.)
25 D. Petitioners Failed to Show that the City's Responses Violated CEQA.
26 1. CEQA Requirements for Responses to Comments.
27 Section 21091(d) provides that the lead agency should "consider" and "evaluate" the
28 comments received on a draft EIR and prepare a "written response" that describes "the disposition
27 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 of each significant environmental issue that is raised by commenters." The written response
2 should "describe the disposition of significant environmental issues raised." (Guidelines, §
3 15088(c).) With respect to "major environmental issues" raised by the commenters, where "the
4 lead agency's position is at a variance with recommendations and objections raised in the
5 comments" the lead agency should provide "reasons why the specific comments were not
6 accepted" and "good faith, reasoned analysis." (Ibid.)
7 It is not "mandatory for an agency to conduct every test and perform all research, study
8 and experimentation recommended to it to determine true and full environmental impact, before it
9 can approve a proposed project." (Societyfor California Archaeology v. County ofButte (1977)
10 65 Cal.App.3d 832, 838.) So long as the "responses as a whole evince good faith and a reasoned
11 analysis" the "fact that the responses are not exhaustive or thorough in some specific respects" is
12 not fatal. (Twain Harte Homeowners Ass'n v. County of Tuolumne (1982) 138 Ca1.App.3d 664,
13 686. See also Guidelines, § 15204(a).)
14 2. The City's Responses to Comments Here Complied with CEQA.
15 Petitioners have failed to show that the City's responses to comments do not comply with
16 CEQA. Notably, since Petitioners were Occupy the Farm members coming late to the process,
17 Petitioners have no comments of their own to cite to. Instead, Petitioners rely on comments by
18 other members of the public who were actively involved in the administrative process and
19 commented on the actual Project before the City, not the Gill Tract Agricultural Research Field.
20 First, Petitioners cite to a letter from Carpenters' Local 713 complaining that it requested
21 documents on August 5, 2009, but did not receive them until September 30, 2009. (AR 1700.)
22 The response explained that the documents requested were provided in August and September of
23 2009, and that the City extended the public comment period for an extra 49 days and notified the
24 commenter of the extension. (AR 1736.) Moreover, the public hearings on the EIR and the
25 Project continued until 2012 (see AR 2535-2536), and so the public had several more years after
26 receiving these documents to comment on the EIR. Petitioners do not show that this response to
27 comment is insufficient.
28 Second, Petitioners cite to Carpenters' Loca1713's comment that the Project would
28 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 increase intensity of uses on the site and potentially adjacent sites. (AR 1697.) However, that
2 comment referred to an entirely different project. (AR 1696-1697.) The commenter apparently
3 ~ cut and pasted text from a prior comment letter on a different project. In response, the City
4 pointed out that the comment was on a different project EIR. (AR 1735.) Petitioners' claim that
5 the City did not adequately respond to this erroneous comment is absurd.
6 Third, Petitioners cite to a comment regarding the connection of the Project "to the rest of
7 the University's designated `Step 3' area, and the Gill Tract[.]" (AR 1758.) The response clearly
8 explains that the only project being considered by the City in the EIR is the smaller 5.3 acre
9 Project, with the specific entitlements requested. (AR 1764.) It refers to earlier responses that
10 explained the lack of relationship between the Project and the Gill Tract Agricultural Research
11 Field. (AR 1764.) Petitioners obviously disagree with the scope of the Project and want to reopen
12 The Regents' prior environmental review for the larger University Village Project and the Gill
13 Tract Agricultural Research Field in particular. As discussed above, those documents are beyond
14 attack and outside the scope of this Project.
15 Fourth, Petitioners claim that the City failed to address repeated proposals by other
16 ~ members of the public regarding the "Reduced Market" alternative. (AR 11197.) Contrary to
17 Petitioners' argument, the response to comment does not have to agree with the comment in order
18 to be sufficient under CEQA. The responses clearly explain the City's position that the proposed
19 "Reduced Market" alternative "would [not] represent a measurable superior alternative to either
20 ~ the proposed project or the Existing Zoning alternative." (AR 1764.)
21 Fifth and finally, Petitioners cite to Mr. Fields' comment about the "lack of public
22 participation in identifying alternatives" and his stated inability to "engender any discussion
23 whatsoever of project alternatives by the Commission ..." (AR 13038.) Given the five-year
24 administrative process and the 20 public hearings held on this Project, it is fairly ridiculous for
25 Petitioners to be complaining about the lack of public comment and discussion about the Project,
26 particularly given that Petitioners themselves only came in at the eleventh hour. Again, the City
27 does not have to agree with the commenter's request to analyze an additional alternative in order
28 for the response to be sufficient under CEQA. The City clearly explained why the proposed
29 OPPOSITION TO PETITION FOR WRIT OF MANDATE 1 ~ ~ alternative would not provide additional information over the studied alternatives, and noted that
2 the discussion of what should be the "preferred" alternative would be considered by the City
3 ~~ Council on the merits of the approval. (AR 1764.) This response was more than adequate.
4 3. Petitioners' Cases Are Distinguishable.
5 People v. County ofKern (1974) 39 Cal.App.3d 830, and Rural LandownersAss'n v. City
6 Council ofLodi (1983) 143 Ca1.App.3d 1013 are inapposite. In County ofKern, the county
7 provided no direct written response to the numerous comments received on the draft EIR, but
8 prepared a short, five-page addendum to the EIR and atwo-page summary of the project's
9 environmental impacts. (39 Ca1.App.3d at 836.) This response was insufficient to fulfill CEQA's
10 requirements for adequate responses to comments. (Id. at 841-842.) In Rural Landowners, the
11 city did not even circulate the draft EIR for public comment prior to certifying the EIR and, thus,
12 could not respond to comments at all. (143 Ca1.App.3d at 1019.) These cases represent a
13 complete failure to comply with CEQA's procedural requirements to respond to comments. Here,
14 in contrast, the City provided responses to comments, and Petitioners are unsatisfied with those
15 responses. Petitioners' other cases are similarly distinguishable.
16 VI. CONCLUSION
17 The City and The Regents respectfully request that the Court deny the petition.
18 DATED: April -?, 2013 MEYERS,NAVE, RIBACK, SILVER &WILSON
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20 Amrit S. Ku 21 Attorneys fo THE GENTS OF THE UNIVERSIT CALIFORNIA 22
23 DATED: Apri13, 2013 WENDEL,ROSEN, BLACK &DEAN LLP 24
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26 Todd A. Williams Attorneys for CITY OF ALBANY 27 ~ 206~oo2.i
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30 OPPOSITION TO PETITION FOR WRIT OF MANDATE PROOF OF SERVICE
2 STATE OF CALIFORNIA,COUNTY OF ALAMEDA
3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Alameda, State of California. My business address is 555 12th Street, 4 Suite 1500, Oakland, CA 94607.
5 On Apri13, 2013, I served true copies of the following documents) described as OPPOSITION TO PETITION FOR WRIT OF MANDATE on the interested parties in this 6 action as follows:
7 Dan Siegel [email protected] 8 Michael Siegel [email protected] 9 Siegel &Yee 499 14th St., Ste. 300 10 Oakland, CA 94612
11 Attorneys for Petitioners Eric Larsen and Stephanie Rawlins 12 BY MAIL: I enclosed the documents) in a sealed envelope or package addressed to the 13 persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Meyers, Nave, 14 Riback, Silver &Wilson's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the 15 ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct.
18 Executed on April 3, 2013, at Oakland, C
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OPPOSITION TO PETITION FOR WRIT OF MANDATE