Reprinted with the permission of LexisNexis.
119 Cal. App. 4th 1261; 15 Cal. Rptr.
3d 176; 2004 Cal. App. LEXIS 1031; 2004 Cal. Daily Op. Service 5877;
2004 Daily Journal DAR 7965; 34 ELR 20040
DEFEND THE BAY, Plaintiff and
CITY OF IRVINE et al., Defendant and
Respondent; THE IRVINE COMPANY, Real Party in Interest and Respondent.
COURT OF APPEAL OF CALIFORNIA,
FOURTH DISTRICT, DIVISION THREE
June 29, 2004,
Johnson & Cross, Kevin K.
Johnson and Jared Phil Hanson for Plaintiff and Appellant.
Rutan & Tucker, Robert S. Bower and Jeffrey T. Melching for Defendant and Respondent.
Latham & Watkins, Christopher W.
Garrett, Amy G. Nefouse and Daniel P. Brunton for Real Party in Interest and Respondent.
BEDSWORTH, J.--Defend the Bay appeals from a judgment that denied its petition for a
peremptory writ of mandate to compel the City of Irvine (the City) to rescind its approval of an environmental impact report (EIR). It argues there is insufficient
evidence to support conclusions regarding impacts in three areas--housing,
agricultural resources, and biological resources. We disagree, and so affirm.
* * *
At issue is the City's plan for development
of the Northern Sphere, a 7,743-acre site northeast of the former Marine Corps
Air Station at El Toro. On June 4, 2002, the city council adopted a resolution certifying a final program EIR that authorized a General Plan
amendment and zone change for the Northern Sphere. The instant writ petition
The details of the EIR, and Defend the Bay's challenges,
will be set out in the course of our discussion. Essentially, Defend the Bay
alleges the City abused its discretion by not proceeding according to law, and
further complains the City's decision is not supported by substantial evidence.
The trial judge found the City had complied with the requirements of the
California Environmental Quality Act (CEQA) (Pub. Res. Code § 21000 et seq.),
and its actions were supported by the evidence. n1
We review CEQA decisions to
determine if they are supported by substantial evidence in the record as a
whole (§ 21168), and whether the agency abused its discretion by failing to
proceed in a manner required by law. In this case, as in most, those questions
revolve around the EIR. (§ 21168.5.) "An EIR is an informational document which
provides detailed information to the public and to responsible officials about
significant environmental effects of a proposed project. [Citations.] It must
contain substantial evidence on those effects and a reasonable range of
alternatives, but the decision whether or not to approve a project is up to the
agency. [Citations.]" Goleta Union School Dist. v. Regents of University of California (1995) 37 Cal.App.4th 1025, 1030 [44 Cal. Rptr. 2d 110].) Review is confined to whether an EIR is sufficient as an informational
document. "The court must uphold an EIR if there is any substantial
evidence in the record to support the agency's decision that the EIR is adequate and complies with CEQA.
[Citation.] [P] CEQA requires an EIR to reflect a good faith effort at
full disclosure; it does not mandate perfection, nor does it require an
analysis to be exhaustive." (Dry Creek Citizens Coalition v. County of
Tulare (1999) 70 Cal.App.4th 20, 26 [82 Cal. Rptr.
As with all substantial evidence
challenges, an appellant challenging an EIR for insufficient evidence must lay
out the evidence favorable to the other side and show why it is lacking.
Failure to do so is fatal. A reviewing court will not independently review the
record to make up for appellant's failure to carry his burden. (Markley v.
City Council (1982) 131 Cal. App. 3d 656, 673 [182 Cal. Rptr.
Defend the Bay makes a series of arguments
based on the EIR's estimate that the project will create more jobs than housing
units--17,667 jobs and 12,350 housing units, for a jobs-to-housing ratio of
1.44. It regards that ratio as adverse, noting the City already has more jobs
than housing (the ratio was 3.29 in 2000).
Defend the Bay first contends there is
insufficient evidence to support the EIR's conclusion the
project will not have a significant adverse impact on housing or employment
growth. It reasons the ratio of 1.44 exacerbates the housing shortage, so it
cannot be regarded as insignificant. A related argument is that the cumulative
impact of the housing shortfall is even greater when other projects are
considered, and again the EIR fails to acknowledge this adverse
impact. We are not persuaded.
In determining whether there are
significant environmental impacts, the lead agency must consider direct, and
reasonably foreseeable indirect, "physical changes in the
environment." (CEQA Guidelines, Cal. Code Regs., tit. 14, ch. 3, § 15064
(d).) n2 A "significant effect on the environment" is one that has
both a substantial and adverse impact on physical conditions within the area
affected by the project. (Guidelines, § 15382.) If a project will create jobs
and bring people into the area, the EIR must discuss the resulting housing
needs, but not in minute detail. It is enough to identify the housing required
and its probable location. (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 367,
370-371 [110 Cal. Rptr. 2d 579].)
An EIR must discuss cumulative impacts of
a project when they are considerable. (Guidelines, § 15130 (a).) Cumulative
impacts are defined as two or more effects which, considered together, are
"considerable or which compound or increase other environmental impacts."
(Id., § 15355.) The
cumulative impact from several projects is composed of the incremental
environmental impact of the project at hand added to others that are closely
related. "Cumulative impacts can result from individually minor but
collectively significant projects taking place over a period of time." (Id., § 15355 (b).)
Section 4.11 of the EIR deals with population and housing.
It concludes the project impact on housing will be substantial but not adverse.
The EIR explains the project will add low and moderate income housing, which is
required by state "Fair-Share" housing law and a City affordable
housing mandate. It will also add housing in "job-rich" Irvine and "contributes to a more balanced jobs/housing ratio." The
calculus resulting in a conclusion the job/housing ratio will be improved is
that with a current 3.29 figure, the 1.44 ratio for the project will bring down
the City's overall ratio of jobs to housing. As to where the excess workers
might be housed, the EIR explains: "The proposed project's
employment component would ... help balance considerable future housing growth
slated for ... south Orange County. [T]he south county areas are expected to remain housing rich through
2025, with a jobs/housing ratio of 1.05 [in one area] and 1.28 [in
The EIR examines cumulative housing impacts
of three different scenarios for development of other areas of the City. Taken
together, the other proposed or planned development would also create more jobs
than housing. So the cumulative impact of the Northern Sphere project is to
push up the jobs-to-housing ratio. Apparently, without the Northern Sphere, the
other projects have a ratio in the range of 7.5 to 8.2. Counting in the
Northern Sphere, the combined figure for the proposed/planned projects drops to
3.8 to 4.0. The EIR concludes the cumulative housing impact is substantial but not adverse.
The reasons give are the same as in the case of the Northern Sphere alone:
"The proposed project's housing responds to city, regional, and state
plans and policies which encourage more affordable housing, particularly in
jobs-rich areas such as Irvine." The project also has a positive impact on the jobs-to-housing
The evidence supports the no-adverse-impact
conclusion for the current project. Needed housing will be added, the city-wide
imbalance of more jobs than housing will be ameliorated, and the shortfall in
housing within the city will be made up by plentiful housing in adjacent
communities. Whether we would agree that more jobs than housing is an adverse
impact is not the question, and it is not our function to second-guess the
City's decision. Rather, our role is to determine if the conclusion reached by
the City has support in the record. It does.
Defend the Bay's view that a 1.44 jobs-to-housing
ratio is adverse is a dissenting position. Implicit in this argument is the
assumption that any project that creates more jobs than housing has a
significant adverse impact. But reasonable minds can differ about whether a
lower jobs-to-housing ratio than that of the City ameliorates the problem or
whether a ratio over .99 exacerbates it. That does not mean the City's
conclusion lacks support in the record.
The same is true of the cumulative impacts,
where the evidence also supports the conclusion of no adverse impact. There are
benefits, the City decided they outweigh the detriments, and that is a choice
it is entitled to make, within reason. So here, too, the EIR is sufficient.
Defend the Bay argues the project is
inconsistent with the City's General Plan--a significant environmental impact
which must be addressed in the EIR. But we cannot discern the claimed
Section 4.9 of the EIR deals with land use and planning
impacts of the project. It considers whether the project is consistent with the
land use elements of the City's General Plan. At issue is Objective A-4,
entitled "Balanced Land Uses: Manage growth to ensure balanced residential
and nonresidential development throughout the City." A detailed analysis
is set out. The EIR concludes "the project provides a balanced set of land uses that
addresses the housing, employment, circulation and open space objectives of
Land Use Element Objective A-4."
Section 4.11 of the EIR (population and housing) lists the
policies contained in the housing element of the General Plan. Policy C-1(e),
"Balanced Land Use," includes this statement: "2000-2005
Objectives: Strive to improve the City's jobs-to-housing relationship,
including matching type and price of housing to need generated by employment."
There is also Objective C-8: "Balanced Employment/Residential
Growth:" "Provide a range of housing opportunities to allow persons
working in Irvine to also reside in the City."
Defend the Bay sees an inconsistency here
because the project creates more jobs than housing and adds to the City's
housing shortage. Thus, it says, there is no balance between jobs and housing.
This is semantic manipulation. We are not dealing with assaying of minerals
here. Balance does not require equivalence, but rather a weighing of pros and
cons to achieve an acceptable mix. The general plan requires the City to
"strive to improve" the jobs-housing relationship. This project
clearly does so. That Defend the Bay would strike a different balance than the
City does not mean the project is inconsistent with the policies at issue.
There is no significant environmental impact that would require discussion in
Finally, Defend the Bay argues the EIR's analysis of
alternatives to the project, and the Statement of Overriding Considerations
adopted by the City, are legally insufficient because neither recognizes the
project will create a housing imbalance. We disagree. A housing
"imbalance" already exists; this project ameliorates it. That might
not satisfy Defend the Bay; it might not have satisfied another city counsel.
But it satisfied this one, and their decision is within the law. No legal
authority is cited, and it seems to us Defend the Bay is again asking that we
arrogate to ourselves a policy decision which is properly the mandate of the
City. We cannot.
Defend the Bay also challenges two aspects
of the project's impact on agricultural resources. First, it contends there is
insufficient evidence to support the EIR's conclusion it is
not feasible to mitigate the impact of developing 3,100 acres of agricultural
land (out of the 7,743 acre project). Second, it argues the EIR fails to discuss the impact of
amending a portion of the City's General Plan dealing with agriculture. Neither
point is persuasive.
The EIR addresses agricultural resources in
section 4.2. It states the conversion of 3,100 acres of prime farmland is a
"significant unavoidable adverse impact." To mitigate this impact,
both on-site and off-site retention of agriculture were considered, but rejected
Under CEQA, feasible means "capable of
being accomplished in a successful manner within a reasonable period of time,
taking into account economic, environmental, social, and technological
factors." (§ 21061.1) On-site agricultural use was considered infeasible
in the long term for several reasons. To begin with, large scale agriculture
will not be economically viable in the long run in Orange County, because of
increasing land prices and environmental regulation, higher water and labor
costs, higher property taxes, competition from other parts of the state and
foreign countries, and growing urbanization. In addition, reducing the
development site "would impede the City from achieving its General Plan
goals and objectives for housing and improving the existing jobs/housing
imbalance in the City in a fiscally sound manner." The goals and
objectives in question, according to the City Council's findings of fact
approving the EIR, are "provision of sufficient
housing units to meet the City's identified housing needs, improvement of the
existing job/housing imbalance, preservation of areas for biological habitat
and open space, and the need to achieve 'fiscal balance' as the City builds
Off-site mitigation was also found
infeasible. The EIR explains there is no other
comparable land planned for agriculture in the General Plan. Placing
agricultural restrictions on new parcels is a possibility, but it would face
the same problems as on-site mitigation--lack of economic viability and conflict
with General Plan goals for housing, biological habitat/open space, and fiscal
Defend the Bay argues the conclusion that
mitigation is not feasible is unsupportable. It contends the City's reasons for
rejecting on-site mitigation are primarily economic--suggesting this is
impermissible--and other reasons given by the City are wrong. As to off-site
mitigation, Defend the Bay argues the City failed to consider the possibility
of converting non-agricultural lands to agricultural use as a means of
mitigating the present loss. We do not see it this way.
As to on-site mitigation, Defend the Bay's
position is another instance of a policy disagreement with the City. But that
does not vitiate the EIR's
conclusions. Economic factors may be
taken into consideration in determining what is feasible. (§ 21061.1.) So there
is nothing impermissible in the City's finding that on-site agriculture is not
feasible in the long term because it will not be economically viable.
Defend the Bay's main argument is the high
value of the land does not make agriculture infeasible; water and labor costs,
competition, and environmental regulation are irrelevant because the land is
already in agricultural production; and urbanization has been caused by the
City and the landowner. We note the first is an opinion, the second says
nothing about the future prospects for large-scale agriculture, and the third,
encroaching urbanization, is a fact regardless of its cause. At bottom, this is
another area where Defend the Bay disagrees with the City, a reasonable and
principled position, but not one which in any way demonstrates a lack of
evidentiary support for the City's conclusions. n3
Defend the Bay also assails the EIR's finding that
on-site mitigation would prevent the City from improving its housing imbalance.
The EIR's reasoning is
that retaining on-site agriculture would mean fewer new housing units, which
otherwise would bring down the city wide jobs-to-housing ratio. Defend the
Bay's position here, as in the case of housing impacts, is simply that the
entire project exacerbates the housing imbalance rather than reducing it,
because it adds more jobs than housing. As we have said, while that is one way
to view the project, it is not the only way, and it does not mean the City's
finding lacks support in the record. Since we conclude the reasons set out in
section 4.2 of the EIR support the conclusion that on-site mitigation is not feasible, we do
not consider Defend the Bay's additional arguments that reasons given in other
parts of the EIR are insufficient.
With respect to off-site mitigation, Defend
the Bay argues it is irrelevant that no suitable land within the city is
currently planned for agriculture. It contends land could be sought elsewhere
within the city's sphere of influence or the county, and such land need not now
be zoned for agriculture. Again, we are not convinced.
This argument ignores the fact the City
also rejected off-site mitigation because any new agricultural uses would face
the same problems as on-site mitigation: the negative economics of long-term
agriculture, and the conflict between agriculture and the General Plan. That is
sufficient evidence to support the conclusion that off-site mitigation is not
Defend the Bay points out the City did
preserve 300 acres of off-site land in various locations for
"metro-farming." This, it contends, demonstrates that off-site
mitigation is possible, although the 300 acres is insignificant and
insufficient. But the economic viability of small patches of farming in
scattered locations says nothing about the prospects for the long-term,
large-scale endeavors Defend the Bay would like to see, so this fact does not
make its case, n4 and we can find no others that do.
Defend the Bay contends the EIR fails to discuss adequately the
impact of amending Objective L-10 of the General Plan. This, it says, deprived
the public of the opportunity to review and comment on the proposed amendment,
which amounts to a failure to proceed in a manner required by law. We think
Objective L-10 deals with agriculture. The
prior version read as follows: "Protect and preserve agriculture as a
viable land use within areas designated agriculture ... ." The amendment
changes that to: "Encourage the maintenance of agriculture in undeveloped
areas of the City until the time of development, and  in areas not available
The EIR discusses the proposed change in
several places. In responses to comments received on the draft EIR, the final EIR discusses the proposed amendment of
Objective L-10. Referring to an appendix that sets out the text of the old and
new provisions, side by side, the response states the proposal makes two key
changes: agriculture is no longer the sole appropriate land use, and emphasis
is shifted from retention of agriculture as open space to retention of
smaller-scale agricultural components for their heritage value.
Section 4.9 (Land Use and Planning) states
that the General Plan provides, in Objective L-10, for protecting and
preserving agriculture as a viable land use. It notes Policy (a) of Objective
L-10 provides for maintenance of agriculture in areas so designated "until
the time of development." (Italics added.) It continues: "The
project would result in the conversion of approximately 3,100 acres of Prime
Farmland, Farmland of Statewide Importance, and Unique Farmland to
non-agricultural uses. ..." The discussion concludes "the City must
now establish ... what its future commitment to agricultural uses will be. The
General Plan amendment that is part of the project will accomplish these
necessary revisions to Objective L-10."
Defend the Bay faults this analysis as
"buried" in the wrong section of the EIR (Land Use and Planning rather than
Agricultural Resources), and it argues the analysis fails to give any details
or consider the "fundamental nature of the policy shift" involved.
Neither point is convincing. The wrong place argument, unsupported by any
authority, is trivial in this context. The relevant inquiry is what is said.
The details of the amendment are set out, and the nature of the proposed
change is made clear in language that leaves little doubt of the magnitude and
significance of the change. No authority is cited for the suggestion that
"fundamental policy shifts" require more, and we see no reason to
create such authority. It may be that there will be instances in which the
placement of an analysis, combined with minimizing or obfuscating language,
might vitiate its effectiveness, but this is most definitely not that case. The
discussion of the amendment to Objective L-10 is prominent and frank.
A related argument is that the discussion
in question first appeared in the final EIR, after the public comment period
closed, so there was no opportunity for public evaluation and opposition. This,
too, is wide of the mark. The inclusion
of new material in a final EIR is not fatal, since the final
version must respond to comments on the draft EIR, with the result that "the
final EIR will almost always contain information not included in the draft EIR." (Laurel Heights
Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th
1112, 1124 [26 Cal. Rptr. 2d 231, 864 P.2d 502].)
What matters is whether "significant new information" is added after
the public comment period closes. If so, the final EIR must be recirculated
for public comment. (§ 21092.1; Laurel Heights Improvement Assn. v. Regents
of University of California, supra, 6 Cal.4th at p. 1129-1130.) Here, there
is no claim the additions to the final EIR amounted to significant new
information. The net result is that challenges to the project's impact on
agricultural resources are of no avail.
The final issue concerns impacts on
biological resources. Defend the Bay argues the EIR improperly defers mitigation of
significant impacts to three species, so the conclusion of "no significant
impact on biological resources" is not supported by the record. We do not
see it that way.
Any project that substantially reduces the
habitat of a wildlife species, or reduces the number or range of an endangered,
rare or threatened species, is deemed to have a significant impact on the
environment as a matter of law. (Guidelines, § 15065 (a).) For these purposes,
species include both animals and plants. (Guidelines, § 15380 (a).)
In addition, a regional conservation plan
that includes the City of Irvine and Orange County imposes further requirements. Pursuant to the Natural Community
Conservation Planning Act (Fish & G. Code, § 2800 et seq.), the Natural
Communities Conservation Plan and Habitat Conservation Plan (NCCP/HCP) was adopted. It provides, among
other things, that if "conditionally covered" species will be
affected by a project, the United States Fish and Wildlife Service (USFWS) and
the California Department of Fish and Game (CDFG) must be consulted, and a
specific mitigation plan must be developed that satisfies the NCCP/HCP. Where species not conditionally
covered are impacted, a permit must be obtained from the USFWS.
At issue are the Least Bell's Vireo (a
bird), the Foothill Mariposa Lily, and the Western Spadefoot
Toad. The vireo is an endangered species and conditionally covered, the lily is
conditionally covered, and the toad is a "sensitive" species that
apparently required evaluation. The EIR concludes that with proposed
mitigation measures, the biological impacts of the project will be reduced to a
level of insignificance.
According to the EIR, the Least Bell's Vireo habitat
would be impacted by the project. The required mitigation turns on
classification of that habitat. If the habitat is an area of "lesser long
term conservation value," a special mitigation plan must be adopted in
consultation with USFWS and CDFG. On the other hand, if the area has "long
term conservation value," a permit is required from USFWS, absent which
the impact on the bird would be significant. According to the EIR, the available data puts the area
in the lesser conservation value category, but final determination is to be
made by USFWS and CDFG.
Mitigation measures are provided. Prior to
the approval of a tentative tract map, the landowner must: consult with the
USFWS and CDFG; conduct surveys during the breeding season to determine if the
birds are in fact present in the habitat area; obtain a determination regarding
the long-term value of the habitat area; obtain permits from the USFWS and
CDFG; and coordinate avoidance measures with those agencies in ways that are
required to include seven listed items.
Two colonies of the Foothill Mariposa Lily
would be affected by the project, consisting of 28 individual plants. The EIR states the City is required to
mitigate this impact under the NCCP/HCP, and it describes the latter's
requirements: (1) design modifications that minimize impact to the habitat; (2)
conduct "an evaluation of salvage, restoration, enhancement, 
management of other conserved mariposa lily, or other mitigation techniques ...
to offset impacts;" (3) provide monitoring and management "consistent
with Chapter 5 of the NCCP/HCP;" and (4) coordinate with
USFWS and CDFG, and obtain USFWS approval. However, the actual mitigation plan
is not set out in the EIR.
The EIR reports the Western Spadefoot Toad was not found in the project area, but there
is suitable habitat that would support the creature, so surveys must be conducted
in potential breeding pools prior to issuing grading permits. If the toad is
found in the project area, a mitigation plan must be prepared in consultation
with USFWS and CDFG. It is to include the construction of breeding pools
satisfactory to these agencies on nearby protected lands. Since there are
existing populations of the toad within the regional conservation area covered
by the NCCP/ HCP, the EIR concludes any impact on this animal would be less than significant. n5
Defend the Bay first argues the failure to
obtain a determination of the long-term conservation value of the vireo's
habitat constitutes improper deferral of mitigation. Deferral of the specifics of mitigation is
permissible where the local entity commits itself to mitigation and lists the
alternatives to be considered, analyzed and possibly incorporated in the
mitigation plan. (Sacramento Old City Assn. v. City Council (1991) 229
Cal. App. 3d 1011, 1028-1030 [280 Cal. Rptr. 478].)
On the other hand, an agency goes too far when it simply requires a project
applicant to obtain a biological report and then comply with any
recommendations that may be made in the report. (Gentry v. City of Murrieta
(1995) 36 Cal.App.4th 1359, 1396-1397 [43 Cal. Rptr.
As explained in Sacramento Old City Assn.
v. City Council, supra, 229 Cal. App. 3d 1011, " 'for [the] kinds of
impacts for which mitigation is known to be feasible, but where practical
considerations prohibit devising such measures early in the planning process
(e.g., at the general plan amendment or rezone stage), the agency can commit
itself to eventually devising measures that will satisfy specific performance
criteria articulated at the time of project approval. Where future action to
carry a project forward is contingent on devising means to satisfy such
criteria, the agency should be able to rely on its commitment as evidence that
significant impacts will in fact be mitigated. [Citations.]' " (Id.
at pp. 1028-1029.)
On this basis, we find there is no improper
deferral of mitigation regarding the Least Bell's Vireo. Regardless of which
category the habitat falls into, prior to approval of a tentative tract map,
the developer is required to consult with the USFWS and CDFG, obtain permits,
and adopt seven itemized avoidance measures in coordination with the
aforementioned agencies. The EIR was prepared at the beginning of
the planning process, for a General Plan amendment and zoning change, the City
has committed to mitigation, and it has specified the criteria to be met. That
is sufficient at this early stage of the planning process. (Sacramento Old
City Assn. v. City Council, supra, 229 Cal. App. 3d at pp. 1028-1030.) The
record supports the conclusion that impacts to the vireo, after mitigation,
will be insignificant.
Defend the Bay contends the EIR does not mitigate significant
adverse impacts to the Foothill Mariposa Lily because no mitigation plan is set
out or approved, and future mitigation is inadequate. Here again, however,
while there is deferred mitigation, it is not improper. The City is required to
mitigate impacts to the lily under the NCCP/HCP, the EIR commits the City to such
mitigation, and it lists what will be required in the mitigation plan. That is
enough. (Sacramento Old City Assn. v. City Council, supra, 229 Cal. App.
3d at pp. 1028-1030.)
The only case cited by Defend the Bay on
this point is distinguishable. Citizens for Quality Growth v. City of Mt.
Shasta (1988) 198 Cal. App. 3d 433, 442, fn. 8 [243 Cal. Rptr. 727], held certification of an EIR was invalid because the city
council did not make any findings adopting the mitigation measures set out in
the EIR. But here, there is no claim that the City failed to make the findings
necessary to properly adopt the present EIR, so we cannot see the relevance of
the case cited. The record adequately supports the EIR's conclusion that
impacts to the lily will be insignificant after mitigation.
Finally, the challenge regarding the
Western Spadefoot Toad is that no timetable has been
set for the surveys to search for the animal, and there is no attempt to avoid
impacts where feasible. Defend the Bay again argues this is improper deferral
But the City has committed to mitigation if
the toad is found in the project area, and it has a plan--to build satisfactory
breeding pools on nearby protected land. That is sufficient. As for the
timetable issue, the EIR requires the surveys to be
undertaken prior to issuing any grading permits. In effect, that is a
timetable, and no reason is suggested why it is inadequate, so this argument
Two other arguments regarding the toad are
no more persuasive. Defend the Bay contends the EIR was required to find the project
impact on the creature significant because it is an "endangered, rare or threatened
species." (Guidelines, § 15065.) But it does not point to any evidence of
this designation. To the contrary, the record characterizes the toad as a
"sensitive" species and a California species of "special concern" and there is no suggestion that is
the same thing. We assume the different labels were attached for a reason and
Defend the Bay does not address the issue.
The environmental organization also argues
the City violated a rule that comments from sister agencies must be responded
to with a good faith, reasoned analysis. (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1367 [111 Cal.Rptr.2d 598].) It says the EIR ignored recommendations from the
USFWS and CDGF that impacts to the toad be avoided and unavoidable impacts be
mitigated. But we do not find any evidence of this. The agencies did make those
recommendations. But to implement them, all they suggested was that surveys of
breeding habitat be conducted during the breeding season, and impacts to breeding
pools be mitigated be creating comparable new ones in coordination with the
agencies. The EIR adopts both suggestions--the surveys must be conducted, during the
breeding season, and if the toad is found, new breeding pools must be
constructed, satisfactory to the agencies in question. So there is nothing
In fine, no grounds have been shown that
would require us to issue a writ of mandate to direct the City to rescind
approval of the EIR for the Northern Sphere project.
Accordingly, the judgment appealed from is affirmed. Respondent is entitled to
costs on appeal. n6
Sills, P. J., and Rylaarsdam,
J., concurred. \
n1 All subsequent statutory references are
to the Public Resources Code unless otherwise indicated.
n2 The CEQA Guidelines (Guidelines),
regulations adopted to implement CEQA, are codified at California Code of
Regulations, title 14, chapter 3, §§ 15000-15387.
n3 A related point is that the absence of
agricultural tax abatements on the land does not make agriculture uses
uneconomical, since prior abatements were given up by the landowner in
anticipation of development. Even if true, a point on which we express no
opinion, there is ample other evidence to support the conclusions regarding
The environmental organization contends
this court previously held the financial benefits of development do not render
agricultural uses infeasible, but that is a misrepresentation. The supporting
citation is to the superior court minute order below, denying the instant writ
petition. That is not a decision of this court, nor is it of any precedential value.
n4 The City moves for judicial notice of a
judgment in a case involving a different project, arguing the judgment approved
the same mitigation measures adopted here. The judgment states, among other
things, that "[t]he City's measures for preservation of agricultural land
in other areas of the City, including the Agricultural Legacy Program, are
found to be sufficient by this Court." The motion is unopposed, and it is
granted. That said, we hasten to add that the relevance of the judgment in
question is not clear, since we are not told if the "Agricultural Legacy
Program" is the same one Defend the Bay assails, nor why satisfaction of
requirements on another project bears on this one.
n5 The Irvine Company requests that
we take judicial notice of the fact its environmental consultant conducted
surveys for the Western Spadefoot Toad during the
spring of 2003, found none, and the City accepted the consultant's report as
complying with the mitigation measures for that animal. Defend the Bay opposes
the motion, arguing the documents are not relevant since they were not part of
the record upon which the EIR was approved. We agree, and deny
the Irvine Company's motion for judicial notice.
n6 After oral argument, the parties
filed a stipulation to dismiss the appeal. Dismissal is discretionary once the
record on appeal has been filed (Cal. Rules of Court, rule 20(c)(2)), and the
court has inherent power to retain a matter that presents important issues of
continuing interest, even though technically moot. (City of Morgan Hill v.
Brown (1999) 71 Cal.App.4th 1114, 1121, fn. 5 [84 Cal. Rptr.
2d 361].) We deem this such a case. The significance of the jobs/housing ratio
of a project appears to be a novel issue. Whether a public entity can approve a
development project that creates more jobs than housing is a matter of public
interest and likely to recur.
We are also troubled by the parties'
refusal to reveal the terms of the settlement. We invited them to submit letter
briefs on whether this appeal involves important issues of continuing interest.
Our order directed any party responding to attach a copy of the settlement
documents to its brief. Defend the Bay did not respond. The other parties did.
No one provided the settlement documents.
According to The Irvine Company, the
settlement agreement is confidential; and Defend the Bay refused to consent to
disclosure. The City claims it is not a party to the settlement, which did not
require it to change the "land use approvals" for the project. But
that is misleading. The City's letter brief reveals it did change the project,
two months after oral argument. At the request of The Irvine Company, the City
converted 227 acres of the project from medical/science to residential use by
amending the general plan and making a zoning change. The net effect was to
reduce the jobs/housing ratio to less than the 1:1 sought by Defend the Bay.
Under these circumstances, we are unable to
determine the nature of the settlement and confronted with important issues we
expect to be of continuing importance, we conclude decision of the case is