No-Project Alternative Analysis in Controversial Livermore Residential Development Found Lacking, EIR Should Have Identified Available Conservation Funding for Site Preservation

April 27th, 2022

By: Dustin Peterson



In Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, the First District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate challenging the approval of a residential housing development (Project) in the City of Livermore (City) on the grounds that the EIR’s no-project alternative analysis was inadequate.

In 2011, Lafferty Communities, Inc. (Real Party) submitted an application to develop the last remaining undeveloped section in the area of the City known as the Garaventa Hills (Project Site). The Project Site is bordered by the Garaventa Wetlands Preserve, which provides habitat to a variety of protected species, and both sites are hydrologically connected to the Springtown Alkali Sink (Alkali Sink), a unique alkaline wetlands area. After considerable public opposition and commenting in response to the Project EIR, the Real Party proposed a smaller, revised version of the development, but the City declined to certify the FEIR or approve the Project. After the Real Party introduced an even smaller Project and submitted a revised application in 2017, and, after releasing the recirculated FEIR (RFEIR) and receiving public input, the City planning commission recommended a further reduced version of the Project that was subsequently approved by the City Council in 2019.

The Save the Hill Group (Petitioners) challenged the Project’s approval asserting, among other things, that the RFEIR failed to consider significant environmental impacts, adequately investigate and evaluate the no-project alternative, or mitigate significant environmental impacts. Although the trial court agreed with Petitioners that the RFEIR’s determination of infeasibility for the no-project alternative was inadequate because it did not evaluate the possibility of using existing mitigation funding to make the alternative feasible, the court denied the petition because Petitioners did not exhaust administrative remedies in challenging the no-project alternative on these grounds before raising a legal challenge. Petitioners appealed the judgment.

Exhaustion

On appeal, Petitioners argued that the trial court erred in finding that they had failed to exhaust administrative remedies because Petitioners’ representatives and members of the public expressed concerns about permanent destruction of habitat and voiced support for keeping the Project Site as open space throughout the City’s environmental review process. In response to these comments, several City councilmembers along with the mayor inquired about potential options for preserving the Project Site, but the City attorney advised that it was too late to change course and that any such actions would potentially open the City up to liability. Given that the City was focused on the feasibility of a no-project alternative because of Petitioners’ comments, the Court found that even though the comments did not specifically refer to the RFEIR’s no-project alternative, the comments had “fairly apprise[d]” the City of Petitioners’ position. Further, because councilmembers and the mayor were advised not to consider the no-project alternative by the City attorney, the Court determined that the City had no intention to consider the alternative of not having the Project go forward. As such, the Court did not bar Petitioners’ challenge to the RFEIR’s no-project alternative analysis for failure to exhaust administrative remedies.

No-Project Alternative

On the merits, Petitioners argued that the RFEIR’s no-project, no development alternative discussion was inadequate because it failed to disclose and analyze information regarding the availability of funding sources that could have been used to purchase and permanently conserve the Project Site. Despite the eligibility of the Project Site and the availability of such funding, the EIR stated that the no development alternative would not meet the Project’s objectives and the City and the Real Party argued that conservation of the Garaventa Hills was not reasonably foreseeable because the Project Site was already zoned for residential development and there was no known willing buyer. The Court rejected this argument noting that the Project Site’s zoning was subject to change. Highlighting the inadequacy of the RFEIR’s no-project analysis, the Court opined that when City officials asked for information regarding the feasibility of acquiring the Project Site for open space, that this information should have been readily available in the RFEIR, but it was not. Instead, City officials were warned by the City’s attorneys that it could be an illegal taking. Yet the Court observed that the legality of such an acquisition was not evaluated in the EIR. As such, because the RFEIR lacked critical information that thwarted informed decisionmaking, the approval of the Project was required to be set aside and a new EIR prepared.

Species Mitigation

In addition to the no-project alternative claims, Petitioners argued in their opening brief that the City violated CEQA by failing to properly mitigate the loss of critical habitat to protect vernal pool fairy shrimp (VPFS) and by not analyzing the hydrological impacts the Project would have on the Alkali Sink. Even though the Court found that Petitioners had waived these arguments by omitting them from their reply brief, the Court addressed them each in turn. Regarding mitigation measures for VPFS should they be found at the Project Site, the Court held that the RFEIR did not improperly defer mitigation because it established specific performance criteria. The Court also found that the hydrological expert’s report in the RFEIR was supported by substantial evidence that the Project would not have significant hydrological impacts on the Alkali Sink, which was downstream from the Project site.

Petitioners contended that a proposed compensatory mitigation site near Alkali Sink was inadequate because the site was already protected for preservation under the City’s general plan. The Court rejected this argument because the RFEIR would require that the site be placed under a permanent easement with an endowment for restoration and management in perpetuity, whereas the general plan contained none of these guarantees. Further, the Court noted that if the site was inadequate for mitigation for any of the identified species, the City could require the Real Party to find an alternative site that was. Acknowledging that conservation easements are an accepted part of agencies’ “toolboxes” for mitigating environmental impacts, the Court found that the preservation of the offsite habitat here was adequate compensatory mitigation for the permanent loss of habitat on the Project Site.

Finally, the Court rejected Petitioners’ argument that the City violated CEQA by not pursuing the possibility of preserving Garaventa Hills in order to meet obligations under prior settlements agreements. The Court noted that not only had Petitioners forfeited this argument by not raising it prior to the appeal, Petitioners lacked standing to enforce obligations arising from these agreements against the City because Petitioners were not parties to the settlement agreements.

On the grounds that the RFEIR failed to adequately analyze the no-project alternative, the Court reversed the trial court’s judgment and ordered the court to issue a peremptory writ of mandate directing the City to set aside its certification of the RFEIR and approval of the Project.

Key Points:

  • CEQA does not require public interest groups to do more than fairly apprise the agency of their complaints in order to satisfy exhaustion.
  • Inadequate or inaccurate information regarding the feasibility of project alternatives may render an EIR inadequate.
  • Compensatory conservation easements are an accepted form of mitigating impacts to species habitat.