First District Upholds Alternatives Analysis, Finding Substantial Evidence Supported Agency’s Decision Not to Analyze an Off-Site Alternative

Jones v. University of California Regents (2010) 183 Cal.App.4th 818.

The First District Court of Appeal reversed a trial court ruling and upheld the alternatives analysis in an environmental impact report (EIR) prepared by the Regents of the University of California (Regents) for a long range development plan (LRDP) for the Lawrence Berkeley National Laboratory. The LRDP EIR included analysis of the following alternatives: (1) the mandatory “no project” alternative; (2) a reduced growth alternative that would reduce the amount of occupiable building space and parking, as well as the new adjusted daily population; (3) a reduced growth alternative that would increase the adjusted daily population, but reduce the occupiable building space and parking; (4) a preservation alternative that would require dedication of a limited number of key historic resources to management by another public agency; and (5) an off-site alternative that would divide future development under the LRDP between the proposed site and an off-site location. The plaintiffs argued that the range of alternatives was insufficient because it did not include a “true off-site” alternative that would locate all development under the LRDP at another, off-site location.

The court first noted that the range of alternatives is limited to alternatives that are both feasible and would accomplish most of the goals of the project. The court went on to note that the EIR had considered an off-site alternative, but the Regents had rejected it because it would not meet several of the project objectives. Since the “true off-site” alternative advocated by plaintiffs would likewise prevent realization of the project’s objectives, including a fundamental principle of the LRDP that underscored the importance of physical proximity in realizing the overall objectives of enhancing “collaboration, productivity, and efficiency,” the court concluded that the EIR was not deficient for failing to consider plaintiff’s off-site alternative.

The argument that an EIR contains an insufficient range of alternatives is frequently made in various forms by petitioners in CEQA litigation. In our view, the court properly found that the argument, in this case, lacked merit. Of particular importance, the court applied the substantial evidence standard of review to the question of whether the alternatives analysis complied with the requirements of CEQA. In 2007, the California Supreme Court published its decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (Vineyard). Vineyard established two distinct standards of review, depending on whether the agency’s alleged violation of CEQA involves procedural or factual matters. If the agency’s alleged violation is procedural, the reviewing court must determine whether the agency “failed to proceed in the manner required by law.” This standard of review does not extend any deference to the agency’s decision. By contrast, if the agency’s alleged violation concerns a finding or conclusion, the reviewing court must determine whether that finding or conclusion is supported by substantial evidence in the agency’s record of proceedings. This standard extends some deference to the agency’s finding or conclusion. Because the level of deference varies depending on which aspect of the standard of review is employed, in the wake of Vineyard CEQA litigants often dispute which approach applies to a given challenge. The Jones case therefore provides helpful guidance regarding which prong of the Vineyard formulation applies to the different issues that arise in CEQA litigation.

The Jones court applied the substantial evidence test to the question of whether rejection of the off-site alternative complied with CEQA. We believe this approach is correct, given the nature of the legal duty to examine a “range of reasonable alternatives” in light of the agency’s basic objectives for the project. This duty requires the agency to make judgments regarding what alternatives must be analyzed, and what objectives are central to the agency’s aims. In our view, because these issues involve matters of judgment, rather than readily ascertainable procedural duties, the “substantial evidence” test properly applies. This approach is also consistent with the Sixth District Court of Appeal’s recent decision in California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957.