Filed 2/14/17 Certified for publication 3/15/17 (order attached)




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                               DIVISION TWO


 RESIDENTS AGAINST SPECIFIC
 PLAN 380,                                                         E063292

          Plaintiff and Appellant,                                 (Super.Ct.No. RIC1312923)
 v.
                                                                   OPINION
 COUNTY OF RIVERSIDE,

          Defendant and Respondent;

 HANNA MARITAL TRUST,

           Real Party in Interest and
           Respondent.


         APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.

Affirmed.

         Johnson & Sedlack, Raymond W. Johnson, Abigail A. Smith, Kimberly A. Foy,

and Kendall Holbrook; Johnson, Smith & Foy, for Plaintiff and Appellant.

         Murphy & Evertz, Douglas J. Evertz, and Bradford B. Grabske; Gregory P.

Priamos, County Counsel, Anita C. Willis, Karin Watts-Bazan, and Melissa R. Cushman,

Deputy County Counsel, for Defendant and Respondent.




                                                          1
       Allen Matkins Leck Gamble Mallory & Natsis, William R. Devine and Heather S.

Riley for Real Party in Interest and Respondent.

       Plaintiff Residents Against Specific Plan 380 (appellant) appeals from a judgment

denying its petition for a writ of mandate challenging the decision of the County of

Riverside (County) to approve development of a master-planned community put forward

as Specific Plan 380 by real party in interest, Hanna Marital Trust.

       The County commissioned an Environmental Impact Report (EIR) on the project,

which determined all potentially significant environmental impacts except noise and air

quality impacts would be reduced below the level of significance after mitigation. The

final EIR responded to public comments on a draft EIR requesting further mitigation

before the County approved the project. The Riverside County Board of Supervisors

(Board of Supervisors) requested modifications of the plan before approving it and

determined the changes did not require revision and recirculation of the EIR. After the

revisions were codified, the Board of Supervisors certified the final EIR and approved the

plan. The County then posted a public notice of its determination which included a

description of the project containing errors about certain project details.

       Appellant sought a writ of mandate in the trial court asserting the County failed to

comply with procedural, informational, and substantive provisions of the California

Environmental Quality Act (CEQA). (Pub. Resources Code, § 2100 et seq.) The trial

court denied the petition in its entirety and entered judgment in favor of the County and

the Hanna Marital Trust.


                                              2
       On appeal, appellant contends we should reverse the judgment and direct the trial

court to grant its petition on the grounds the County: (1) substantially modified the

project after approving it; (2) approved the project without concurrently adopting

findings, a statement of overriding consideration, and a mitigation plan; (3) failed to

recirculate the final EIR after modifying the project; (4) certified the final EIR despite

inadequately analyzing the impacts of the development of the mixed use planning area;

(5) issued an erroneous and misleading notice of determination after approving the

project; and (6) failed to adopt all feasible mitigation alternatives proposed in comments

on the draft EIR. We affirm.

                                              I

                                FACTUAL BACKGROUND

       A. Overview of the Keller Crossing Project

       The Keller Crossing Specific Plan Project (project) proposes a master-planned

community with residential, mixed use, commercial, and open space components on

approximately 200 acres of land in the French Valley region of Riverside County. The

site is undeveloped; approximately 75 percent is used for agricultural purposes and the

rest supports native and naturalized vegetation. State Route 79 borders the project to the

east, Pourroy Road to the west, and foothills to the north. Keller Road runs through the

southern portion of the site.

       Single-family residences occupy the area to the south and west of the site. Single-

family residences and agricultural land occupy the area to its east. The area to the north


                                              3
is undeveloped, but approved for residential development and some mixed uses under a

different specific plan.

       The Hanna family has owned the site since 1979. In February 2008, the Hanna

Marital Trust (Trust) began the approval process to allow development of “single-family

homes, retail shops, a family entertainment center, a neighborhood commercial center,

medical offices, a medical center, and office/flex space.”

       The project, as approved by the Board of Supervisors on November 5, 2013,

includes a general plan amendment (GPA No. 951), a change of zone (CZ No. 7723), and

a specific plan (Specific Plan 380). GPA No. 951 amended the Riverside County General

Plan Land Use Element by changing the Riverside County General Plan Foundation

Component designation from rural foundation to community development and the land

use designation from rural residential to commercial retail, mixed use, very-low-density

residential, low-density residential, medium-density residential, and open space

conservation. CZ No. 7723 changed the zoning classification to those required to

implement Specific Plan 380.

       Specific Plan 380, as approved, divides the site into seven geographical sections

(planning areas or PAs), which include three very-low-density residential units, 25 low-

density residential units, 42 medium-density residential units, 39.5 acres of mixed uses,

up to 650,000 square feet of commercial uses, 61.1 acres of dedicated open space, and

20.2 acres for roads and supporting infrastructure. Figure No. 1 shows the final approved

disposition of uses.


                                             4
      Figure No. 1




      B. The Draft EIR and the Notice and Comment Period

      On July 28, 2011, the Riverside County Planning Department (Planning

Department) announced the release of a draft EIR, describing the project and notifying

interested parties where copies of the draft EIR and supporting documents would be

available. The Planning Department set a public review period from August 8 to

September 26, 2011, and indicated written comments received during the review period

would be included in the final EIR.




                                            5
       The draft EIR evaluated a version of the plan which proposed breaking the site

into eight planning areas, with areas dedicated to commercial offices, commercial retail

establishments, and residential units. One planning area was dedicated to mixed uses,

including both residential and commercial uses, and another set aside land for open space

conservation. The draft EIR specified the acreage for each planning area and allocated

uses among them as set out in Table No. 1.

                                      Table No. 1
    Area      Use                      Acres                 Units            Footage
    PA 1      Commercial
              Office                      9.9                   —              50,000
    PA 2      Commercial
              Retail                      8.8                   —             125,000
    PA 3      Commercial
              Office                    13.9                    —             200,000
    PA 4      Low Density
              Residential               15.6                    22                    —
    PA 5
              Medium Density
              Residential               20.8                    73                    —
    PA 6
              Mixed Use                 21.6                   225                    —
    PA 7      Commercial
              Retail                    29.2                    —             275,000
    PA 8      Open Space
              Conservation              61.1                    —                     —

     —        Roads                     20.2                    —                  —
    Totals                             201.1                   320            650,000

       The draft EIR incorporated an analysis of the proposed project’s potentially

significant environmental impacts and proposed measures to mitigate them. The report

concluded “[w]ith the exception for air quality and noise, all significant impacts would be



                                             6
reduced to below a level of significance following implementation of the mitigation

measures.” With respect to air quality, the draft report concluded emissions from project

construction would exceed regional criteria pollutant thresholds for certain kinds of

emissions. The report identified measures to mitigate those effects, but concluded the air

quality effects during construction and operation would be significant and unmitigable.

       The Planning Department received 11 comment letters during the public review

period. The letters came from public agencies, Native American tribes, and public

utilities. The Planning Department responded to the comments and in some instances

incorporated changes in the final report. Among those letters, were comments from the

South Coast Air Quality Management District (SCAQMD) and the City of Temecula.

       SCAQMD expressed concern about the project’s air quality impacts and requested

the Planning Department “require mitigation that reduces local resident’s exposure to

construction related emissions and reduces the project’s operational emissions from new

vehicular trips generated by the project.” SCAQMD asked for revisions of Mitigation

Measure AQ-3, which required contractors to use California Air Resources Board

(CARB) Tier II-certified equipment or better for rubber-tired dozers, rubber-tired loaders,

and scrapers. SCAQMD asked instead that, between January 1, 2012 and December 31,

2014, off-road diesel-powered construction equipment greater than 50 horsepower meet

Tier 3 off-road emissions standards, construction equipment be outfitted with Best

Available Control Technology devices, and emissions control devices achieve emissions

reductions not less than what could be achieved by a Level 3 diesel emissions control


                                             7
strategy for a similarly sized engine as defined by CARB regulations. After January 1,

2015, SCAQMD requested off-road diesel-powered construction equipment greater than

50 horsepower meet the Tier 4 emission standards, where available.

         The City of Temecula also requested additional measures designed to further

mitigate air quality impacts. Temecula pointed out Mitigation Measure AQ-12 specifies

the “project will be required to exceed the 2008 Title 24 Energy Codes,” but suggested it

should “comply with current 2010 California Energy Code and should also consider, as

reasonable mitigation measures, compliance with the 2010 California Green Building

Standards to further reduce the impacts of the proposed project. Additionally, the

proposed project should consider prescriptive mitigation measures such as attic fans,

whole house fans, [and] photovoltaic, solar water heaters.”

         C. The Final EIR

         The County released the final EIR in January 2012. The final EIR included the

following map (figure No. 2) showing the allocation of land uses among the planning

areas.

         Figure No. 2




                                             8
       The final EIR evaluated a version of the plan in its basics identical with the plan

evaluated in the draft EIR. The plan proposed breaking the same 201.1 acre project site

into the same eight planning areas. Like the plan evaluated in the draft EIR, it dedicated

23.8 acres to commercial office uses in planning areas 1 and 3, 38 acres to commercial

retail uses in planning areas 2 and 7, 15.6 acres to low-density residential uses in

planning area 4, 20.8 acres to medium-density residential uses in planning area 5, 21.6

acres to mixed uses in planning area 6, 61.1 acres to open space conservation in planning

area 8, and 20.2 acres to roads. Also as in the draft EIR, the low-density residential area

would accommodate 22 residential units, the medium-density residential area would

accommodate 73 residential units, and the mixed use area would accommodate 225

residential units, for a total of 320 residential units. The plan also provided for the same




                                              9
400,000 square feet of commercial retail space and 250,000 square feet of commercial

office space, for a total of 650,000 square feet dedicated to commercial uses.

       The final EIR describes the kind of development allowed in each planning area.

In planning areas 1 and 3, “[t]he Commercial Office designation would allow for a

variety of administrative and professional office uses, including, but not limited to,

business, law, medical, dental, chiropractic, architectural, engineering, and real estate

offices. In addition, Commercial Office areas would be suitable for health and exercise

centers or gyms; hotels and motels; restaurants; banks and financial institutions; day care

centers; and churches, temples, and other places of religious worship. Other uses may be

permitted at the discretion of the County Planning Director. [¶] . . . Planning Area 1 is

anticipated to develop as a series of smaller office buildings, rather than a large office

park. . . . [¶] . . . Planning area 3 would be appropriate for development of a contiguous

office park; however, the planning area could be further divided into smaller parcels to

accommodate a variety of smaller office complexes.”

       In planning areas 2 and 7, “[t]he Commercial Retail designation would allow for

the development of commercial retail uses at a neighborhood, community or regional

level, as well as for professional office and tourist-oriented commercial uses. [¶] . . .

[planning area 2] is anticipated to be developed with a neighborhood shopping center that

may include a grocery store, drug store, and other locally serving shops. . . . [¶] . . .

[Planning area 7] is intended to accommodate development at a community or regional

level, as well as professional office and tourist-oriented commercial uses. Other uses,


                                              10
such as hotels, recreation and amusement facilities, and those outlined in the Commercial

Tourist land use designation of the Riverside County General Plan, would be permitted.”

       In planning area 4, the low-density residential designation would allow “for the

development of up to 22 dwelling units on 15.6 acres . . . Proposed residential units

would be comprised of single-family, detached homes one-half-acre minimum lots.

Intensive animal-keeping would be discouraged within the Low Density Residential land

use designation; however, limited agriculture would be permitted. The Foothill Trail

would traverse the northern portion of this planning area within the 100-foot-wide

urban/wildland interface and fuel modification zone, between the proposed developed

areas and Planning Area 8. Enclosure fences and signs would be installed along the

interface where residential development abuts open space.”

       “Up to 73 single-family, detached residences on 5,000-sf minimum lots would be

allowed in Planning Area 5 . . . Planning Area 5 would include an activity center near

Planning Area 4. The activity center may consist of one or more of the following:

community gardens, picnic tables, barbeques, a dog park, a play area or tot lot, and/or

shade structures. In addition, the Foothill Trail would traverse the northern portion of

this planning area within the 100-foot-wide urban/wildland interface and fuel

modification zone, between the proposed residences and Planning Area 8.”

       Planning Area 6 “would be designated as Mixed Use. It may provide for the

development of a CCRC [Continuing Care Retirement Community], which would allow

seniors to ‘age in place,’ with flexible accommodations that are designed to meet their


                                            11
health and housing needs as such needs change over time.” The Final EIR specifies the

CCRC may include 125 independent living units, 100 assisted living units, a skilled

nursing facility with 100 beds, and a memory care facility with 50 beds. The final EIR

notes “Planning Area 6 is not required to develop as a CCRC. Should this planning area

not be developed with a CCRC, other commercial or residential land uses may be

developed if they are compatible with the adjacent planning areas, and if no additional

environmental impacts would occur (based on review by the County).”

       Finally, the final EIR says in planning area 8 “61.1 acres (30.4 percent of the

Specific Plan Area) would be designated as Open Space Conservation and would remain

as permanent natural open space. Planning Area 8 would contribute open space land to

Proposed Constrained Linkage 17 of the Western Riverside County [Multi-Species

Habitat Conservation Plan]. The proposed project has received a Habitat Acquisition

Negotiation Strategy (HANS) determination letter from the Regional Conservation

Authority (RCA), concurring with the partial conservation proposed by the Specific Plan.

Vegetation communities to be preserved within Planning Area 8 include riversidean sage

scrub, non-native grassland, and agricultural land. No trails, hiking, or biking would be

permitted within Planning Area 8.”

       Like the draft EIR, the final EIR concluded the plan’s mitigation measures would

reduce all environmental impacts below a level of significance, except for air quality and

noise impacts. The final EIR concluded emissions from project construction “would

exceed regional criteria pollutant thresholds . . . for emissions of volatile organic


                                              12
compounds (VOCs), nitrogen oxides (NOx), particulate matter that is 10 microns or

smaller (PM10), and particulate matter that is 2.5 microns or smaller (PM2.5).” The report

also concluded emissions during the operation of phases 1 and 2 of the project would

exceed pollutant thresholds for VOCs, CO, and NOx, and during the operation of phase 2

would also exceed the threshold for PM10. The report also concluded emissions from

short-term construction activities would exceed the localized pollutant thresholds for

PM10 and PM2.5 at receptors located within 341 and 246 feet from construction activities.

Though the plan set out several mitigation measures for each problem, the report

concluded each would remain significant even after mitigation.

       Regarding the noise impacts, the final EIR concluded “[i]mplementation of the

project would result in temporary noise impacts related to construction equipment and

activities.” The plan includes several mitigation measures. However, the final EIR

concluded the noise impacts would remain significant and unmitigable, even after taking

those measures into account.

       The final EIR incorporated the comments discussed in part I.B., ante, and included

responses to each. First, SCAQMD recommended the Planning Department revise

mitigation measure AQ-3 to require contractors to use construction equipment meeting

Tier 3 and later Tier 4 off-road emission standards instead of Tier 2 standards. The

County responded mitigation measure AQ-3 “reflects the construction equipment that is

anticipated to be reasonably available at the time of project construction. As the

applicant does not anticipate the reasonable availability of equipment meeting the more


                                            13
stringent requirements proposed by SCAQMD, these have not been incorporated into the

required mitigation measures.”

       Second, the City of Temecula recommended the project comply with then-current

2010 California Energy Code. The County agreed “the project will need to comply with

the California Energy Code in effect at the time of construction,” and responded “[t]his

standard requirement does not conflict with Mitigation Measure AQ-12’s requirement

that the project exceed the 2008 California Title 24, Part 6 Energy Efficiency Standards

by a minimum of 15 percent. As such standards are rapidly evolving, the 2008 code was

chosen as the basis of comparison, rather than requiring conformance to a code that is

likely to be out of date when the project is constructed.”

       Third, the City of Temecula recommended the plan require compliance with the

2010 California Green Building Standards and prescriptive mitigation measures, such as

attic fans, whole house fans, and photovoltaic, solar water heaters. The Planning

Department said “a performance standard was adopted, rather than prescriptive

mitigation measures . . . [to] allow the applicant to tailor implementation to best fit the

final project design and technology available at . . . construction.”

       D. Modifications to Specific Plan 380 After the Final EIR

              1. Planning Commission modifications

       On April 18, 2012, the Riverside County Planning Commission (Planning

Commission) took up Specific Plan 380 and the final EIR.




                                              14
       At the hearing, Commissioner Petty proposed several changes. After hearing

these proposals and other plan matters, the Planning Commission voted to continue the

hearing on the project to allow revisions. The Trust revised the land use plan to address

some of those issues, and on October 17, 2012, planning staff and the Trust presented the

revisions.

       The revised plan included changes to four planning areas. Planning area 1, which

had been designated for development of 50,000 square feet of commercial office space,

would be designated for very-low-density residential development—specifically six one-

acre lots. Planning Area 3 would keep its designation for development of commercial

office space, but all buildings in its southern portion abutting Keller Road would be

limited to two stories in height. Planning Area 4 would keep its designation for low-

density residential development, but lots at the western edge of the area, next to Pourroy

Road, would be no more than half an acre in size, no smaller than 100 feet wide, and

would not have access to Pourroy Road. Planning Area 6 would remain designated for

mixed use development, but unrestricted high-density multi-family development would

not be allowed. Retail uses would be restricted to small shops, such as a pharmacy,

sandwich shop, or stationery store, to service the neighborhood. Instead of requiring a

buffer of very-low-density residential development on the edge of planning area 5 next to

the open space conservation zone, the revised plan proposed to include a 100-foot fuel

modification zone.




                                            15
       Planning staff and the Trust presented a report by the County’s environmental

consulting firm analyzing whether the changes to the plan required recirculating the final

EIR. The report says the modifications would not change the project’s effects on

agricultural, biological, cultural or paleontological resources, or geology and soils

because they do not change the project footprint. It says reduction in the scale of

development would reduce aesthetic impacts, greenhouse gas emissions, impacts related

to the compatibility between the project and existing uses, as well as incrementally

decrease impacts on air quality, utility use, and traffic. Finally, it says water quality

impacts would be the same or slightly reduced and noise impacts would be consistent

with those previously described in the final EIR.

       The report concludes the modifications would not create new significant

environmental impacts or substantially increase the severity of environmental impacts,

and would reduce the severity of some environmental impacts. It also concludes there

were no additional considerably different feasible project alternatives or mitigation

measures that would lessen significant environmental impacts. As a result, it concluded

the County was not required to recirculate the final EIR.

       After the presentation, the Planning Commission voted to recommend approval of

the plan with the modifications to the Board of Supervisors.

              2. Board of Supervisors modifications

       The Board of Supervisors took up the revised Specific Plan 380, GPA No. 951,

and CZ No. 7723 on December 11, 2012.


                                              16
       The day before the meeting, more than a year after the comment period for the

draft EIR, counsel for appellant submitted a letter containing comments on the final EIR

and Specific Plan 380 with numerous recommendations and complaints about the project

and the final EIR. Relevant to this appeal, it reiterates the air quality mitigation proposals

in the comments submitted by the SCAQMD and the City of Temecula. Appellant also

proposed to mitigate the noise impacts of project construction by installing temporary

noise barriers, using only electric construction equipment where feasible, prohibiting

construction vehicles from idling for longer than three minutes, resurfacing roads,

banning trucks near vibration sensitive uses, and using rubberized asphalt.

       At the hearing, after additional public comment, Supervisor Stone recommended

further plan modifications. The Board of Supervisors voted to have planning staff

implement those changes and return to present the revised plan a week later.

       Planning staff and the Trust made revisions to the plan affecting five of its areas.

Planning area 1 was redesigned to reduce the number of lots. Planning Area 3 was

designated for medium-density residential development, allowing for the development of

42 to 70 single-family homes. Planning Area 4 would remain low-density residential,

accommodate up to 19 single-family homes with lots of half an acre or larger, and lots at

its western edge two acres or larger with no access to Pourroy Road. Planning areas 5

(medium-density residential) and 6 (mixed use) would be combined and the new planning

area 5 would be designated for mixed use development. Reductions in allowable




                                             17
development in planning areas 1, 3, and 4 could be transferred to the new planning area

5.

       These modifications did not change the footprint of the project or alter the number

of residential units or the allowable square footage for commercial development analyzed

in the final EIR. The purpose and effect of the modifications was to move denser

development away from existing low-density residential areas by moving it from the

western and southern edges of the project into the center of the project.

       A report by the County’s environmental planning consultant again analyzed

whether the changes to the plan required recirculating the final EIR. The report says the

modifications would not change the project’s effects on agricultural, cultural or

paleontological resources, hazardous materials, or geology and soils because the

modifications do not change the project footprint or scope of uses. It also says the

modifications “would not result in a new significant impact or change in the severity of

impact related to population projections, Housing Element Consistency, public services,

and recreation” because the modifications would not change the number of allowable

residential units or space allotted to commercial development. The report says relocating

denser uses adjacent to existing residential areas to the center of the site would reduce the

aesthetic and land uses compatibility impacts of the project.

       The report indicates the modifications would not change greenhouse gas

emissions, impacts on air quality, noise, or traffic, and would leave unchanged or slightly

reduce impacts on hydrology and water quality. Finally, the report says “the potential use


                                             18
in the northwestern portion of the development area would be modified from Medium

Density Residential to Mixed Use,” which “would be consistent with the use previously

analyzed adjacent to the central portion of the linkage. Adjacency requirements

identified in the Western Riverside Multiple Species Habitat Conservation Plan would

continue to apply, minimizing potential indirect impacts. Thus, the proposed

modifications would not change the EIR’s conclusion that biological resource impacts

would be significant but mitigable.”

       The report concludes the proposed modifications would cause no new significant

environmental impacts, would not substantially increase the severity of existing impacts,

and in some cases would reduce their severity. It also concludes there are no additional

feasible project alternatives or mitigation measures that would clearly lessen significant

environmental impacts. As a result, the report concludes, the County was not required to

recirculate the final EIR.

       After the presentation, the planning staff recommended approval of the project

with those changes incorporated. The Board of Supervisors voted to accept the Planning

Department’s recommendation to tentatively certify the final EIR, approve Specific Plan

380, GPA No. 951, and the change of zone.

       E. The Specific Plan After Modification and Final Project Approval

       Between December 2012 and May 2013, the Trust and planning staff worked

together to finalize the modifications to the plan. During that period, planning staff

responded to inquiries about the status of the project from counsel for appellant, telling


                                             19
them they were working with the Trust to redraft the final exhibits before the Board of

Supervisors acted to amend the General Plan, certify the final EIR, adopt the Specific

Plan, and amend the zoning ordinance.

       In May 2013, the Trust submitted the final version of Specific Plan 380 to the

County. The final plan incorporated the changes presented at the December 18, 2012

hearing. It combined former planning areas 5 and 6, located at the center of the project

site, and increased the density of development allowed in the new, expanded planning

area 5. It designated planning area 1 for very-low-density residential development

(VLDR), permitting only three lots, and reinstated the 50,000 square feet of commercial

office space originally designated for planning area 1 to the new planning area 5. The

revised plan also changed the designation of planning area 3 from commercial office to

medium-density residential development (MDR).

       The changes to Specific Plan 380 had the primary effect of relocating denser uses

to the center of the project site, creating a buffer of residential uses for existing residential

areas to the south and west of the project. Table No. 2 compares the project as analyzed

in the final EIR with the final plan as submitted to the Board of Supervisors for approval.

The changes do not alter the footprint of the site. Nor do they change the number of

residential units or the square footage of commercial development. Instead, they reduce

development at the periphery of the site (green highlighted rows) by increasing

development at the center of the site (orange highlighted rows).




                                               20
                                      Table No. 2
             Plan in Final EIR                          Plan as Approved
Area        Use    Acres Units Footage      Area     Use     Acres    Units     Footage

PA 1      Office      9.9    —     50,000   PA 1    VLDR        9.9         3      N/A

PA 2      Retail      8.8    — 125,000      PA 2    Retail      8.8        — 125,000

PA 3      Office    13.9     — 200,000      PA 3    MDR        13.9        42          —

PA 4      LDR       15.6     22        —    PA 4    LDR        18.3        25          —

PA 5      MDR       20.8     73        —

PA 6      Mixed     21.6    225        —    PA 5    Mixed      39.5      250 250,000

PA 7      Retail    29.2     — 275,000      PA 6    Retail     29.0        — 275,000

          Open                                      Open
PA 8      Space     61.1     —         —    PA 7    Space      61.1        —           —

 —        Roads     20.2     —         —     —      Roads      20.6        —           —

Totals             201.1    320 650,000                      201.1       320 650,000

         On November 5, 2013, the final EIR, Specific Plan 380, GPA No. 951, and CZ

No. 7723 came before the Board of Supervisors. The Board of Supervisors approved the

plan as submitted by adopting (i) Resolution No. 2013-197 certifying the final EIR and

adopting Specific Plan 380, (ii) Resolution No. 2013-224 amending the General Plan to

adopt GPA 951, and (iii) Ordinance 348.4767 amending Ordinance No. 348 to accept CZ

No. 7723 and zone the project site for development as provided in Specific Plan 380.




                                            21
The EIR resolution included findings of fact, a mitigation monitoring and reporting plan,

and a statement of overriding considerations.

       F. Notice of Determination

       The same day, the Planning Department filed a notice of determination (notice)

with the county clerk in compliance with section 21152,1 which requires an agency

approving a project to file a notice of the approval within five working days. The notice

informed the public the project will have a significant effect on the environment and that

an environmental impact report was prepared. It also certified the final EIR was

available to the general public at the Planning Department offices.

       The notice also included a description of the project. However, the Planning

Department used an out-of-date description. The notice says: “The project proposes up

to 326 dwelling units, 650,000 square feet proposed for commercial use and 61.1 acres

proposed for conserved open space within eight (8) planning areas. [¶] . . . The Specific

Plan proposes 400,000 square feet of commercial retail uses, 200,000 square feet of

commercial office uses, medium-density residential uses (up to 73 dwelling units), low-

density residential uses (up to 22 dwelling units), mixed use (up to 225 housing units),

open space conservation, and master plan roadways. There are 36.4 acres proposed for

residential uses, 62.7 acres proposed for commercial uses, 21.6 acres proposed for mixed

use, 61.1 acres proposed for open space and 19.3 acres for master plan roadways.” The

notice therefore inaccurately described the final project in several particulars.

       1
           Unlabeled statutory citations refer to the Public Resources Code.

                                              22
       G. Trial Court Proceedings

       On November 18, 2013, appellant filed a petition for a writ of mandate in the trial

court alleging the County failed to comply with the same procedural and substantive

requirements of CEQA at issue in this appeal.2

       The trial court held a hearing on the petition on February 13, 2015. On February

26, 2015, the trial court issued a written ruling denying the petition on all grounds

asserted. On March 18, 2015, the trial court entered judgment in favor of the County and

the Trust and against appellant. Appellant timely appealed.

                                              II

                                       DISCUSSION

       CEQA and the regulations implementing it “embody California’s strong public

policy of protecting the environment. ‘The basic purposes of CEQA are to: [¶]

(1) Inform governmental decision makers and the public about the potential, significant

environmental effects of proposed activities. [¶] (2) Identify ways that environmental

damage can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable

damage to the environment by requiring changes in projects through the use of

alternatives or mitigation measures when the governmental agency finds the changes to

be feasible. [¶] (4) Disclose to the public the reasons why a governmental agency




       2
           Appellant raised some issues in the trial court which it abandoned on appeal.


                                             23
approved the project in the manner the agency chose if significant environmental effects

are involved.’” (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285-286.)

       To achieve these goals, where the public agency determines a proposed

development (not subject to an exemption) may have a significant effect on the

environment, CEQA and its implementing regulations require a public agency to prepare

an environmental impact report before approving the project. (Id. at p. 286.) The

environmental impact report “is the ‘heart of CEQA’” whose “purpose is to inform the

public and its responsible officials of the environmental consequences of their decisions

before they are made. Thus, the EIR ‘protects not only the environment but also

informed self-government.’” (Laurel Heights Improvement Assn. v. Regents of

University of California (1993) 6 Cal.4th 1112, 1123 (Laurel Heights).)

       A. Standard of Review

       We review an agency’s compliance with CEQA to determine whether there was a

prejudicial abuse of discretion. (§ 21168.5; Vineyard Area Citizens for Responsible

Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426 (Vineyard).) An

agency abuses its discretion if it “‘has not proceeded in a manner required by law or if the

determination or decision is not supported by substantial evidence.’” (Vineyard, at

p. 426.) Our “review of the administrative record for legal error and substantial evidence

. . . is the same as the trial court’s: The appellate court reviews the agency’s action, not

the trial court’s decision.” (Id. at p. 427.) “We therefore resolve the substantive CEQA

issues . . . by independently determining whether the administrative record demonstrates


                                              24
any legal error by the County and whether it contains substantial evidence to support the

County’s factual determinations.” (Ibid.)

       Our review of the County’s factual findings for substantial evidence is highly

deferential. (California Native Plant Society v. City of Santa Cruz (2009) 177

Cal.App.4th 957, 984.) “The agency is the finder of fact and we must indulge all

reasonable inferences from the evidence that would support the agency’s determinations

and resolve all conflicts in the evidence in favor of the agency’s decision.” (Save Our

Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99,

117 (Save Our Peninsula).) Substantial evidence is “enough relevant information and

reasonable inferences from this information that a fair argument can be made to support a

conclusion, even though other conclusions might also be reached.” (CEQA Guidelines,

Cal. Code Regs., tit. 14, §§ 15088.5, subd. (a), 15384, subd. (a) (Guidelines); see also

Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47

Cal.3d 376, 393 [“A court may not set aside an agency’s approval of an EIR on the

ground that an opposite conclusion would have been equally or more reasonable”].)

       B. The Timing of the County’s Approval of Specific Plan 380

          1. The County properly approved the project after the plan was modified

       Appellant contends the Board of Supervisors approved the project on December

18, 2012, when it voted to certify the final EIR and approve Specific Plan 380, GPA No.

951, and CZ 7723. Appellant contends this act was an abuse of discretion because the

Trust and the County substantially modified Specific Plan 380 thereafter.


                                            25
       We disagree with appellant’s characterization of the events for two reasons. First,

the Board of Supervisors vote of December 18, 2012 gave only tentative approval of the

EIR, Specific Plan 380 and associated documents. It gave its final approval on

November 5, 2013, after planning staff and the Trust had codified the plan changes

discussed at the December 18, 2012 hearing. Second, the Board of Supervisors requested

and the staff incorporated the late plan modifications about which appellant complains

before the tentative approval. The administrative record makes both these points clear.

       At a hearing on December 11, 2012, the Board of Supervisors made specific

requests for additional modifications to the plan and continued the matter for one week to

allow planning staff to implement the changes. On December 18, 2012, planning staff

presented the requested modifications. At the end of the presentation, planning staff said,

“With these changes incorporated, Staff recommends certification of the EIR, approval of

the SP, the General Plan Amendment and the change of zone.” Supervisor Stone then

moved to approve the project in accordance with the planning staff recommendation and

the Board of Supervisors voted for the motion. Minutes of the hearing state the “matter is

tentatively approved as recommended, and staff is directed to prepare the necessary

documents for final action.” Thus the December approval was tentative and final

approval was explicitly conditioned on successful codification of the changes presented

at the December 18, 2012 hearing.

       Planning staff worked with the Trust in subsequent months to finalize Specific

Plan 380. During that period, planning staff corresponded with counsel for appellant,


                                            26
informing them they were redrafting the final exhibits before the Board of Supervisors

acted to amend the General Plan, certify the final EIR, adopt Specific Plan 380, and

amend the zoning ordinance. The Trust submitted the final version of Specific Plan 380

to the County in May 2013.

      The final plan incorporated the changes staff presented at the December 18, 2012

hearing. The Board of Supervisors requested planning area 1 be designated very-low-

density residential development, planning area 3 be changed from commercial office

development to medium-density residential development, and planning areas 5 (medium-

density residential) and 6 (mixed use) be combined and the new combined planning area

designated for mixed use development. Reductions in allowable development in

planning areas 1 and 3 were to be transferred to the new mixed use area. The final plan

made those changes. Thus, planning staff simply incorporated the plan modifications

presented to the Board of Supervisors before the tentative approval.

      The record also shows the Board of Supervisors approved the plan as modified on

November 5, 2013. It did so by adopting (i) Resolution No. 2013-197 certifying the final

EIR and adopting Specific Plan 380, (ii) Resolution No. 2013-224 amending the General

Plan to adopt GPA 951, and (iii) Ordinance 348.4767 amending Ordinance No. 348 to

accept CZ No. 7723 and zone the project site for development as provided in Specific

Plan 380. The EIR resolution included findings of fact, a mitigation monitoring and

reporting plan, and a statement of overriding considerations. The Planning Department

filed a notice with the county clerk in compliance with section 21152 on the same day. It


                                            27
was those actions which “commit[ted] the agency to a definite course of action in regard

to [the] project” and constituted project approval. (Guidelines, § 15352, subd. (a); Save

Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139.)

         There is therefore no merit to the claim the County approved the project before

making substantial changes to the plan. As a result, we conclude the County did not

abuse its discretion.

            2. The County properly adopted findings, a statement of overriding
               considerations, and a mitigation plan concurrently with its approval

         Appellant also contends the County failed to comply with section 21081 of CEQA

by approving the project without concurrently adopting findings of fact, a statement of

overriding considerations (SOC), and a mitigation, monitoring, and reporting plan

(MMRP). We disagree.

         Appellant’s position again rests on the contention the Board of Supervisors

certified the EIR and approved the plan on December 18, 2012. Though the County did

not, at that time, adopt findings of fact, an SOC, or MMRP, that fact is immaterial. As

we discussed in part II.B.1., ante, the Board of Supervisors did not certify the EIR or

approve the plan until November 5, 2013, at which time the County did adopt findings,

an SOC, and MMRP. Because only the final action by the County approved the project,

the County did not fail to comply with section 21081. Appellant’s objection has no

merit.




                                             28
       C. The Notice of Determination

       Appellant contends the County filed an inadequate notice because it does not

accurately describe the project as approved.

       After a local agency decides to approve a project for which an EIR has been

prepared, it must file a notice with the county clerk. (§ 21152, subd. (a); Guidelines,

§ 15094, subd. (d).) Among other things, the agency must ensure the notice contains: a

brief description of the project, information identifying the project and its location, a

statement that an EIR was prepared and certified under CEQA, the agency’s conclusion

whether the project will have a significant effect on the environment, whether it adopted

mitigation measures and a mitigation monitoring program, and where the public may

examine the final EIR and the record of project approval. (§ 21152; Guidelines, § 15094;

Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48

Cal.4th 32, 43, 52 (Green Foothills).) The agency must file the notice within five

working days of project approval. (Guidelines, § 15094, subd. (a).)

       The notice triggers the running of a statute of limitations on CEQA challenges.

“To be timely, an action challenging the adequacy of an EIR must be commenced within

30 days after the county clerk posts the notice of determination that the project’s lead

agency has filed with it. [Citations.]” (Sierra Club v. City of Orange (2008) 163

Cal.App.4th 523, 532; see also § 21167, subd. (c); Guidelines, § 15094, subd. (g); Green

Foothills, supra, 48 Cal.4th at pp. 48, 51.) “[T]he 30-day limitations period does not

begin to run if the notice of determination is substantively defective in failing to properly


                                               29
describe the lead agency’s actions. [Citations.] A notice of a determination’s adequacy

is governed by the substantial compliance doctrine which ‘“means actual compliance in

respect to the substance essential to every reasonable objective of the statute’” even

though it may contain “‘technical imperfections of form.’”” (Sierra Club v. City of

Orange, at p. 532.)

        Here, the parties agree the notice sets out a description of the project which

contains errors. The notice erroneously describes the project as comprising 8 planning

areas (instead of 7), 200,000 square feet of commercial office development (instead of

250,000), 73 medium-density residential units (instead of 42), 22 low-density residential

units (instead of 25), 225 residential units in a mixed use area (instead of 250), 36.4 acres

for residential uses (instead of 42.1), 62.7 acres for commercial uses (instead of 37.8),

and 21.6 acres for mixed uses (instead of 39.5). In effect, the notice incorporates

elements of a description of the project as it existed after the Planning Commission

changes of October 2012, but before the Board of Supervisors changes of December

2012.

        We conclude these errors do not justify unwinding the County’s approval of the

project. In the first place, the notice substantially complies with the informational

requirements of CEQA. It correctly identifies the project and its location. It notifies the

public an EIR was prepared and certified under CEQA. It states the agency’s conclusion

the project will have a significant effect on the environment. It says mitigation measures

were made a condition of approval and that there is a mitigation monitoring program. It


                                              30
also provides the name and phone number of the County’s contact person on the project

and the address where the public may examine the final EIR and the record of project

approval.

          Moreover, though the brief description of the project contains errors, much of the

description is correct. For example, though the notice erroneously says the project will

have only 200,000 square feet of commercial office space along with 400,000 square feet

of retail space, it correctly states it will allow for 650,000 square feet of commercial

development overall. We conclude the notice’s description of the project is close enough

to the project as approved that it provided the public with the information it needed to

weigh the environmental consequences of the County’s determination, seek additional

information if necessary, and intelligently decide whether to bring a legal challenge to the

approval within the 30-day limitations period. (Green Foothills, supra, 48 Cal.4th at

p. 43.)

          Perhaps more importantly, appellant cannot show the errors in the notice were

prejudicial. Appellant filed its CEQA challenge to the project approval on November 18,

2013—thirteen days after the County filed the notice and well before the statute of

limitations had run. The remedy where a notice is insufficient to provide the public

notice is to hold the 30-day statute of limitations does not apply. (Latinos Unidos de

Napa v. City of Napa (2011) 196 Cal.App.4th 1154, 1167.) That remedy provides no

relief to appellant. Moreover, appellant’s CEQA challenge targets the plan as approved,

not the plan as described in the notice. Thus, the erroneous description interfered with


                                               31
appellant’s ability to make an informed decision whether to pursue legal action no more

than it interfered with its ability to bring a timely challenge. (Neighbors for Smart Rail v.

Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463.) We conclude

the erroneous elements of the project description were not prejudicial error.

       D. Decision Not to Recirculate the EIR

       Appellant contends the County abused its discretion by failing to revise and

recirculate the final EIR after making changes to the plan, claiming the decision not to

recirculate was not based on substantial evidence. We disagree.

       “Section 21092.1 provides that when a lead agency adds ‘significant new

information’ to an EIR after completion of consultation with other agencies and the

public [citations] but before certifying the EIR, the lead agency must pursue an additional

round of consultation.” (Vineyard, supra, 40 Cal.4th at p. 447.) New information is

“significant” only if “the EIR is changed in a way that deprives the public of a

meaningful opportunity to comment upon a substantial adverse environmental effect of

the project or a feasible way to mitigate or avoid such an effect.” (Laurel Heights, supra,

6 Cal.4th at p. 1129; accord, Guidelines, § 15088.5, subd. (a).)

       “Recirculation is not mandated under section 21092.1 when the new information

merely clarifies or amplifies the previously circulated draft EIR, but is required when it

reveals, for example, a new substantial impact or a substantially increased impact on the

environment.” (Vineyard, supra, 40 Cal.4th at p. 447.) A significant environmental

impact includes both substantial and potentially substantial adverse changes in the


                                             32
environment. (§ 21068; Vineyard, at p. 448.) We review an agency’s determination

whether a newly disclosed impact is significant and warrants recirculation for substantial

evidence in the record. (Laurel Heights, supra, 6 Cal.4th at p. 1135.)

       Here, appellant challenges the changes to Specific Plan 380 made after the Board

of Supervisors heard comments on the plan on December 11, 2012. The differences

between the plan described in the final EIR and Specific Plan 380 as approved have to do

with the details of the allocation and arrangement of uses within the project site, not the

kinds of uses permitted or the overall extent or density of the proposed development. The

footprint of the project remains the same. The same 61.1 acres remain designated for

open space conservation. As Table No. 2 (ante, part I.E. at p. 21) shows, the project as

approved permits the same amount of retail development in the same planning areas, the

same amount of commercial office development, and the same number of residential

units as the version of the plan analyzed in the final EIR.

       The primary change is the final plan swaps commercial office development in the

southern portion of the site with residential development in the center portion of the site

below the conservation area. The 250,000 square feet of commercial office space

formerly permitted in planning areas 1 and 3 has been moved north into planning area 5

(formerly planning areas 5 & 6). Planning area 1 will no longer contain 50,000 square

feet of commercial office development, but instead three residential units. Planning area

3 will no longer contain 200,000 square feet of commercial office development, but

instead 42 residential units. Meanwhile, planning area 5 comprises 39.5 acres, is


                                             33
designated for mixed uses, and may contain 250 residential units (225 of those in an

assisted living facility) and 250,000 square feet of commercial office space. Previously

the same area was split between medium-density residential development (20.8 acres)

and mixed use development (21.6 acres), and permitted 298 residential units (225 of

those in an assisted living facility).3

       Appellant contends the final EIR “absolutely failed to address the impacts of

changing the 20.8-acre former [planning area] 5 from medium-density residential to

combine with the 21.6-acre former [planning area] 6 into one, 39.5-acre mixed use

[planning area] 5 as approved by the County.”4 Appellant posits the change from

medium-density residential to mixed use in planning area 5 “may cause a significant

increase in trip generation and related effects above those evaluated and disclosed in the

EIR,” “[t]raffic would also likely increase and on-site traffic patterns would change with

the redesigned Project,” and “biological impacts may result from drainage, lighting, and

noise from the Project’s urban/wildlands interface.”




       3
         The final plan also reallocated approximately two and a half acres from the
former planning areas 5 and 6 to planning area 4 and added three additional residential
units. Appellant does not contend those and other development limitations to planning
area 4 required the County to recirculate the EIR.
       4
        To the extent appellant attacks the Board of Supervisors approval of the project
based on the changes made at the December 18, 2012 hearing, rather than its
determination that those changes did not require it to recirculate the EIR, it fires on the
wrong target. We review the County’s decision not to recirculate the EIR to determine
whether substantial evidence supports that decision.


                                             34
       The County’s expert consultants addressed these questions in evaluating whether

the final EIR had to be revised and recirculated. Regarding the traffic effects of the

revised plan, both the County’s traffic and environmental experts concluded no change

would occur to the amount of traffic. The basis for their conclusion was the project as

analyzed in the final EIR and the revised project permit exactly the same number of

residential units and exactly the same amount of commercial development. We conclude

the County’s determination was supported by enough relevant information and

reasonable inferences—specifically that the number of trips is controlled by the number

of residential units and the square footage of commercial development—that a fair

argument can be made to support its conclusion. Appellant’s additional contention the

EIR should have been revised and recirculated to take into account changes in traffic

patterns due to the redistribution of uses within the project site is not well taken. As the

traffic and environmental experts explain, such circulation patterns are not analyzed at

the EIR stage.

       The County’s environmental expert also concluded no new or substantially

increased biological impacts would result from increasing the length of the interface

between mixed use development and the conservation area. The expert acknowledged

the “potential use in the northwestern portion of the development area would be modified

from Medium Density Residential to Mixed Use,” but concluded “this would be

consistent with the use previously analyzed adjacent to the central portion of the linkage”

and “[a]djacency requirements identified in the Western Riverside Multiple Species


                                             35
Habitat Conservation Plan would continue to apply, minimizing potential indirect

impacts.” In other words, the County determined recirculation was not required because

the final EIR already analyzed the effects of mixed use development adjacent to the

conservation area and found the biological impacts significant but mitigable. Former

planning area 6 was designated for mixed use development and the changes merely

extended the adjacency further to the northwest. The County concluded mitigation

measures that met the conservation plan for the shorter span would be adequate to do so

over the longer span. We conclude the County’s determination was based on enough

information and reasonable inferences to withstand review.

       Appellant also contends the change from commercial office development to very-

low-density residential development in planning area 1 “may subject residences to noise

from Keller Road and at SR-79 at Keller Road . . . [which] may therefore be greater than

those disclosed in the EIR.” According to appellant, “there is no evidence the mitigation

required is adequate to mitigate [such] impacts.” The County’s environmental consultant

reached the contrary conclusion, explaining “the EIR identifies anticipated noise levels

adjacent to project roadways and requires (Mitigation Measures N-10 and N-12)

additional analysis prior to the issuance of building permits to ensure that exterior and

interior noise impacts at potentially affected residences would comply with the applicable

ordinances. These existing mitigation measures would ensure that impacts would be

reduced to below a level of significance.” Again, this information provided the County




                                             36
with an adequate factual basis for determining the changes did not result in a new or

significantly increased impact requiring recirculation.

       Finally, appellant contends the redistribution of land uses within the project may

create “potential land use inconsistencies.” However, appellant does not identify the

potential inconsistencies. The County’s environmental consultant concluded relocating

denser uses from the areas adjacent to existing residential areas to areas in the center of

the site would reduce the aesthetic and land uses compatibility impacts of the project.

The residential development of planning areas 1 and 3 will buffer existing residential

development to the south of the project from commercial development. Meanwhile, as

the consultant noted, existing measures that address the interface of the conservation area

and the former, smaller mixed use planning area will mitigate effects of an extended

interface. Thus, the County had an adequate basis for determining the changes did not

require recirculation.

       Save Our Peninsula, supra, 87 Cal.App.4th 99 does not support finding

recirculation was required here. In Save Our Peninsula the EIR called out that increased

water pumping over a baseline figure would require reduced pumping in a nearby

location as a critical mitigation issue. (Id. at p. 128.) Comments on the draft EIR

specifically objected to using offset water credits at another location to mitigate increased

pumping, and said it would be crucial to analyze the specifics of any offsite pumping

offset to be sure there was a nexus between the offset and the pumping increase. (Id. at p.

129.) In response to the comments, the EIR agreed “the reduction must be ‘an actual


                                             37
reduction in documented current water use, not simply a reduction on potential future

pumping.’” (Ibid.) However, the applicants did not identify an offset pumping location

in the EIR until just before approval by the Board of Supervisors, and it did so without

any discussion of the effects of the offsetting pumping reduction. (Id. at pp. 129-130.)

The County accepted the proposed mitigation and approved the plan. (Id. at p. 130.) The

appellate court found the decision was not supported and ordered the County to prepare a

revised EIR to analyze “the feasibility of a pumping offset on the [proposed] parcel,

including . . . whether there is an actual nexus between reduced pumping on that property

and increased pumping on the [subject] property.” (Id. at p. 143.) This case does not

present a similar situation. The late changes to Specific Plan 380 did not involve an issue

identified in the EIR and comments as requiring specific factual development. Moreover,

here the County obtained and considered expert input on whether the changes made any

significant change to the impacts.

       Vineyard, supra, 40 Cal.4th 412 is also inapposite. In Vineyard, comments on a

draft EIR identified the interruption of the migration of protected salmon species as a

potentially significant impact. (Id. at p. 421.) The County responded the effect of further

groundwater withdrawals was likely to be small and therefore insignificant. (Id. at

p. 426.) However, the EIR recognized an exception “during periods of very low flow . . .

[during which] these depletions could change the timing and areal extent of the

dewatering of the stream invert, potentially impacting aquatic and riparian-dependent

species and habitat.” (Ibid.) The Court of Appeal concluded the exception “identif[ied] a


                                            38
substantial, or at least potentially substantial, new impact” because “‘periods of very low

flow’ are precisely those in which, according to comments on the draft EIR . . . migratory

fish . . . are likely to be adversely affected by further dewatering.” (Id. at p. 448.) Thus,

the basis for finding no substantial environmental impact showed there was one,

requiring further comment and analysis. Here, the Board of Supervisors requested

changes to a plan to address comments about insulating existing rural residential areas

from denser development. The changes were not designed to address, and substantial

evidence shows they did not raise, significant environmental impacts.

       E. The EIR Adequately Analyzes Impacts of Uses in the Mixed Use Area

       Appellant contends the final EIR does not adequately analyze the air quality,

noise, and traffic impacts of permissible development in the mixed use planning area. At

bottom, appellant complains the final EIR analyzes the impacts of development of a

CCRC but not the impact of higher-impact uses that may be allowed.

       “‘An EIR will be found legally inadequate—and subject to independent review for

procedural error—where it omits information that is both required by CEQA and

necessary to informed discussion.’ But CEQA challenges concerning the amount or type

of information contained in the EIR, the scope of the analysis, or the choice of

methodology are factual determinations reviewed for substantial evidence. [Citations.]

Put another way, ‘[w]e apply the substantial evidence test to conclusions, findings, and

determinations, and to challenges to the scope of an EIR’s analysis of a topic, the

methodology used for studying an impact, and the reliability or accuracy of the data upon


                                              39
which the EIR relied because these types of challenges involve factual questions.’”

(Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1546.)

       Here, appellant questions the scope of the analysis contained in the EIR and

considered by the Board of Supervisors in approving the project. The EIR assumed the

mixed use area, originally 21.5 acres, would be developed to include a CCRC with 125

independent living units, 100 assisted living units, a skilled nursing facility with 100

beds, and a memory care facility with 50 beds. The EIR analyzes the traffic, noise, and

air quality impact of such a development, and the approval of the project is based on that

analysis. However, the plan does not require the area be used for building a CCRC. If,

in the end, developers choose not to build a CCRC, they may pursue other permitted

commercial or residential land uses. Such uses, appellant points out, may generate

substantially more traffic than a CCRC and, as a consequence, have greater air quality

and noise impacts as well. Appellant contends the EIR was inadequate, and the Board of

Supervisors approval based on it was erroneous, because its analysis did not evaluate the

environmental impacts of those alternative developments.

       We conclude the decision to limit the scope of the analysis was based on

substantial evidence. As the EIR states, if the developer decides not to build a CCRC and

seeks to pursue other permitted options, it could do so only if the proposed uses “are

compatible with the adjacent planning areas, and if no additional environmental impacts

would occur (based on review by the County).” The County could reasonably conclude




                                             40
in view of those requirements that it was not necessary to undertake an environmental

analysis of what are merely possible development schemes.

       This is not an instance of an agency deciding to defer environmental analysis of

likely effects of a project. (Cf. Vineyard, supra, 40 Cal.4th at p. 435 [EIR failed to

include analysis of plans for providing water to a large, mixed use development].) The

agency merely decided to limit the analysis to the proposed and likely development while

imposing restrictions that would limit the scope of potential changes to the development

plan. We conclude that determination was not error.

       F. The EIR Adequately Considered Specific Suggestions for Mitigating the Impact
          of the Project on Air Quality and Noise Levels

       Appellant contends the final EIR is inadequate because the County refused to

adopt suggestions for mitigating significant air quality and noise impacts without

providing adequate reasons to conclude the measures were infeasible.

       “The Legislature has declared ‘it is the policy of the state that public agencies

should not approve projects as proposed if there are feasible alternatives or feasible

mitigation measures available which would substantially lessen the significant

environmental effects of such projects. . . .’ [Citation.] Our Supreme Court has

described the alternatives and mitigation sections as ‘the core’ of an EIR.” (Los Angeles

Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1028-1029.)

“[A]n adequate EIR must respond to specific suggestions for mitigating a significant

environmental impact unless the suggested mitigation is facially infeasible. [Citations.]



                                             41
While the response need not be exhaustive, it should evince good faith and a reasoned

analysis.” (Id. at p. 1029.)

          1. The County did not abuse its discretion by failing to adopt proposed
             mitigation measures for air quality impacts

       Appellant contends the County did not adopt all feasible mitigation measures for

air quality impacts or respond to them adequately in the final EIR.

       The final EIR concludes construction impacts are significant and unmitigable

because, even after implementing mitigation measures, emissions will exceed

SCAQMD’s significance thresholds for volatile organic compounds, nitrous oxide, and

particulate matter. The final EIR concludes the operational impacts of the project are

significant and unmitigable because, even after implementing mitigation measures, long-

term operational activity emissions will exceed the regional pollutant threshold for

emissions of volatile organic compounds, nitrous oxide, carbon monoxide, and

particulate matter.

       In response to the draft EIR’s determination the project will significantly affect air

quality, commenters suggested several additional mitigation measures. In each case,

appellant complains the County neither adopted the mitigation measure nor provided an

adequate explanation why the proposed measure was not feasible. We consider each

proposed measure and the County’s response in turn.

       First, SCAQMD recommended requiring additional mitigation to reduce local

residents’ exposure to construction-related emissions and to reduce operational emissions

from new vehicular trips generated by the project. SCAQMD recommended revising

                                             42
mitigation measure AQ-3, which provides, “[d]uring construction activity, the contractor

will utilize CARB Tier II-certified equipment or better for the following pieces of

equipment: rubber-tired dozers, rubber-tired loaders, and scrapers.” SCAQMD proposed

requiring “[a]ll offroad diesel-powered construction equipment greater than 50 hp shall

meet Tier 3 offroad emissions standards” from January 1, 2012 to December 31, 2014

and Tier 4 thereafter.

       The Planning Department responded, “Mitigation Measure AQ-3 reflects the

construction equipment that is anticipated to be reasonably available at the time of project

construction. As the applicant does not anticipate the reasonable availability of

equipment meeting the more stringent requirements proposed by SCAQMD, these have

not been incorporated into the required mitigation measures.” In short, the Planning

Department determined the proposed mitigation measure was not feasible because the

applicant judged the proposed equipment meeting higher emissions standards would not

be available at the time of construction.

       Appellant contends the response was inadequate because it “cited no evidence or

reasoning . . . the equipment meeting Tier III standards would not be available,” and asks

us to hold the determination was not supported by substantial evidence. This argument

misstates the obligations of the agency in responding to proposed mitigation measures in

an EIR. Responses “must be addressed in detail giving reasons why specific comments

and suggestions were not accepted. There must be good faith, reasoned analysis in

response. Conclusory statements unsupported by factual information will not suffice.”


                                            43
(Guidelines, § 15088, subd. (c); see also San Francisco Ecology Center v. City and

County of San Francisco (1975) 48 Cal.App.3d 584, 596.) We conclude the County’s

stated reason for not adopting the proposed additional mitigation measure was

sufficiently detailed to support the County’s determination that the more stringent

standard was not feasible, at least at the time the County approved the project.

       Second, the City of Temecula suggested revising mitigation measure AQ-12.

Temecula pointed out Mitigation Measure AQ-12 specifies the “project will be required

to exceed the 2008 Title 24 Energy Codes,” but suggested the project should “comply

with current 2010 California Energy Code.” The County responded “the project will

need to comply with the California Energy Code in effect at the time of construction,”

and “[t]his standard requirement does not conflict with Mitigation Measure AQ-12’s

requirement that the project exceed the 2008 California Title 24, Part 6 Energy Efficiency

Standards by a minimum of 15 percent.” In short, the County determined adopting the

proposed mitigation measure would not be useful because the measure already set an

absolute standard and any legally mandated increase in the standard would control in any

event. We conclude the County’s reasoned response to this proposal provided adequate

support for its decision not to adopt it.

       Third, the City of Temecula suggested the plan require compliance with the 2010

California Green Building Standards and require prescriptive mitigation measures, such

as attic fans, whole house fans, and photovoltaic, solar water heaters. The Planning

Department responded “a performance standard was adopted, rather than prescriptive


                                            44
mitigation measures. This will allow the applicant to tailor implementation to best fit the

final project design and technology available at the time of construction.” The County’s

preference for a performance standard, which will give the applicant and developer

leeway and reduce enforcement and enforceability problems with the proposed very

specific prescriptive measures, provided an adequate basis for refusing to adopt those

measures. (Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 245

(Clover Valley).)

          2. The County did not abuse its discretion by failing to adopt late proposed
             mitigation measures for noise effects

       Appellant contends the County failed to adopt feasible mitigation measures for

noise effects it proposed in its December 10, 2012 letter to the Board of Supervisors and

failed to find its proposals infeasible based on substantial evidence.

       Appellant proposed to mitigate the significant noise impacts of construction by

installing temporary noise barriers, using electric construction equipment, prohibiting

construction vehicles from idling for more than three minutes, resurfacing roads, banning

trucks near vibration sensitive uses, and using rubberized asphalt.

       A lead agency is required to respond to comments received during the notice and

comment period. However, “‘there is no requirement that an agency respond in writing

to comments submitted after expiration of the [EIR] comment period.’” (A Local &

Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1808; see also

Guidelines, § 15088, subd. (a) [“The Lead Agency shall respond to comments received

during the noticed comment period and any extensions and may respond to late

                                             45
comments”], italics added.) For this project, the comment period ran from August 8

through September 26, 2011. Appellant’s comments were more than 14 months late.

Thus, the County was not required to make a formal response.

      In any event, we conclude the County did not abuse its discretion in deciding not

to adopt the noise mitigation measures which require electric construction equipment that

may not be available or duplicate existing requirements, like using noise attenuation

fences and limiting idling. (See Clover Valley, supra, 197 Cal.App.4th at p. 245.)

                                           III

                                     DISPOSITION

      We affirm the judgment and award costs to Respondents.




                                                               SLOUGH
                                                                                          J.

We concur:


HOLLENHORST
          Acting P. J.


McKINSTER
                          J.




                                            46
Filed 3/15/17
                            CERTIFIED FOR PUBLICATION

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                      DIVISION TWO


RESIDENTS AGAINST SPECIFIC PLAN 380,                       E063292
  Plaintiff and Appellant,
  v.                                                (Super.Ct.No. RIC1312923)
COUNTY OF RIVERSIDE,
  Defendant and Respondent;                                ORDER CERTIFYING
                                                           OPINION FOR PUBLICATION
HANNA MARITAL TRUST,
   Real Party in Interest and
   Respondent.
_______________________________________



THE COURT

        The requests for publication of the opinion filed on February 14, 2017 are GRANTED.
The opinion meets the standard for publication as specified in California Rules of Court, rule
8.1105(c). It is ORDERED that the opinion filed in this matter on February 14, 2017, be
certified for publication.



                                                                   SLOUGH
                                                                                                 J.

We concur:


HOLLENHORST
          Acting P. J.


McKINSTER
                            J.



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