Filed 5/20/15




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


BANNING RANCH CONSERVANCY,

    Plaintiff and Appellant,                          G049691

        v.                                            (Super. Ct. No. 30-2012-00593557)

CITY OF NEWPORT BEACH et al.,                         OPINION

    Defendants and Appellants;

NEWPORT BANNING RANCH LLC et
al.,

    Real Parties in Interest and Appellants.



                  Appeal from a judgment of the Superior Court of Orange County, Robert
Louis Becking, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
                  Office of the City Attorney for the City of Newport Beach, Aaron Harp,
City Attorney and Leonie Mulvihill, Assistant City Attorney; Remy Moose Manley,
Whitman F. Manley and Jennifer S. Holman for Defendants and Appellants.
                  Leibold McClendon & Mann and John G. McClendon for Plaintiff and
Appellant.
               Manatt, Phelps & Phillips, Susan K. Hori and Benjamin G. Shatz for Real
Parties in Interest and Appellants.
               Kamala D. Harris, Attorney General, John A. Saurenman, Assistant
Attorney General, and Jamee Jordan Patterson, Deputy Attorney General, for California
Coastal Commission as Amicus Curiae.




               Banning Ranch consists of approximately 400 acres of largely undeveloped
coastal property, with active oilfield facilities and operations dispersed thereon. Project
           1
proponents seek to develop one-fourth of Banning Ranch for residential and commercial
purposes, and to preserve the remaining acreage as open space and parks, removing and
remediating much of the oil production equipment and facilities (the Project). The City
of Newport Beach and its City Council (collectively the City) approved the Project.
Banning Ranch Conservancy (the Conservancy), “a community-based organization
dedicated to the preservation, acquisition, conservation and management of the entire
Banning Ranch as a permanent public open space, park, and coastal nature preserve,”
filed a mandamus action against the City.
               The trial court agreed with the Conservancy’s claim that the City violated
the Planning and Zoning Law (Gov. Code, § 65000 et seq.) and its own general plan by
its alleged failure to adequately coordinate with the California Coastal Commission
before its approval of the Project. On the other hand, the court rejected the
Conservancy’s claim that the City violated the California Environmental Quality Act
(CEQA; Pub. Resources Code, § 21000 et seq.) by failing to identify in the
environmental impact report (EIR) the “environmentally sensitive habitat areas”
1
            Project proponents are real parties in interest Newport Banning Ranch
LLC, Aera Energy LLC, and Cherokee Newport Beach, LLC.

                                             2
(ESHAs) — a defined term in the California Coastal Act of 1976 (Coastal Act; Pub.
Resources Code, § 30000 et seq.). All interested parties appealed. We agree with the
court’s CEQA ruling but conclude the court erred by finding the City violated its general
plan. We therefore reverse the judgment to the extent it provides for mandamus relief to
the Conservancy.


                                                  2
                                         FACTS


              We describe in this section: (1) the City’s general plan, as it pertained to
Banning Ranch; (2) the City’s coastal land use plan, which, by its own terms, did not
apply to Banning Ranch; (3) the proposed Project; (4) the draft EIR; (5) The City’s
response to comments and final EIR; (6) the City’s approval of the Project; and (7) the
procedural history of this action. Keep in mind the primary legal disputes: (a) What
actions were required of the City vis-à-vis the Coastal Commission, prior to Project
approval, regarding the decision whether to develop, preserve, or restore particular
portions of Banning Ranch; and (b) Was the City required to designate ESHAs in the
EIR?


The City’s General Plan, as it Pertains to Banning Ranch
              “Each planning agency shall prepare and the legislative body of each
county and city shall adopt a comprehensive, long-term general plan for the physical


2
               Collectively, the parties’ thorough, well-researched “briefs” exceed 300
pages. The City’s appendix features 1,489 pages and the Conservancy’s appendix adds
98 pages. The electronic administrative record totals a whopping 49,046 pages. We have
striven to limit our recitation of facts to those strictly necessary to the analysis of the
issues before us and to refrain from discussing unnecessary background material and the
parties’ arguments in the alternative. We assure the parties, however, that we appreciate
their diligence in bringing all potentially relevant materials and issues to our attention.

                                             3
development of the county or city, and of any land outside its boundaries which in the
planning agency’s judgment bears relation to its planning.” (Gov. Code, § 65300.) The
general plan adopted by a legislative body is “a ‘“constitution” for future development’
[citation] located at the top of ‘the hierarchy of local government law regulating land use’
[citation].” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 773.) “The planning
law . . . compels cities and counties to undergo the discipline of drafting a master plan to
guide future local land use decisions.” (Ibid.)
              The City’s 2006 general plan recognizes Banning Ranch as a distinct
                                             3
“[d]istrict” within its “sphere of influence.” The general plan acknowledges both the
damage done by longstanding (“at least 75 years”) use of Banning Ranch for oil
extraction activities and the value of Banning Ranch as a wildlife habitat and open space
resource for citizens. The environmental value of the “diverse habitats” contained within
Banning Ranch varies. Some of Banning Ranch (particularly the northwestern portion)
has a “high biological resource value”; other segments are of lesser environmental
importance.
              The general plan notes resident support for the preservation of all of
Banning Ranch as open space or, alternatively, the limited development of Banning
Ranch if necessary “to help fund preservation of the majority of the property as open
space.” A highlighted “Policy Overview” section states as follows: “The General Plan
prioritizes the acquisition of Banning Ranch as an open space amenity for the community
and region. Oil operations would be consolidated, wetlands restored, nature education
and interpretive facilities provided, and an active park developed containing playfields
and other facilities to serve residents of adjoining neighborhoods. [¶] Should the

3
              The vast majority of Banning Ranch (361 acres) is within the jurisdiction of
unincorporated Orange County; the remaining 40 acres are within the City. Nonetheless,
all of Banning Ranch falls within the City’s “‘sphere of influence’” and is therefore the
appropriate subject of the City’s general plan. (See Merritt v. City of Pleasanton (2001)
89 Cal.App.4th 1032, 1034; Gov. Code, §§ 65300, 65859, subd. (a).)

                                                 4
property not be fully acquired as open space, the Plan provides for the development of a
concentrated mixed-use residential village that retains the majority of the property as
open space. . . . While the Plan indicates the maximum intensity of development that
would be allowed on the property, this will ultimately be determined through permitting
processes that are required to satisfy state and federal environmental regulatory
requirements.”
              Building on its stated policy preferences, the general plan identifies two
                               4
alternative land use “Goal[s].” The first goal, “LU 6.3,” is “[p]referably a protected
open space amenity, with restored wetlands and habitat areas, as well as active
community parklands to serve adjoining neighborhoods.” The second goal, “LU 6.4,” is
a backup option: “If acquisition for open space is not successful, a high-quality
residential community with supporting uses that provides revenue to restore and protect
wetlands and important habitats.”
                                                         5
              Each alternative goal features a “Policies” section beneath the goal. The
policies in support of Goal LU 6.3 are simple. The first, described as a “LAND USES”
policy and entitled “Primary Use,” declares the intended use of Banning Ranch to be
open space. A “STRATEGY” listed underneath is entitled “Acquisition for Open Space”
and announces support for the acquisition of Banning Ranch by the City through a variety
of possible funding mechanisms. Both the land uses and strategy sections cross-reference
                                   6
several implementation actions, described elsewhere in the general plan.

4
               According to the general plan, “Goals describe ideal future conditions for a
particular topic, such as for Banning Ranch . . . . Goals tend to be very general and
broad.”
5
              According to the general plan, “Policies provide guidance to assist the City
as it makes decisions relating to each goal. Some policies include guidelines or standards
against which decisions can be evaluated.”
6
              According to the general plan, “Implementation Actions identify the

                                             5
              The Policies listed beneath Goal LU 6.4 are more detailed. The “LAND
USES” section entitled, “Alternative Use,” describes the limited development of a
residential village, “with a majority of the property preserved as open space.” Next
follows nine separate policies setting forth requirements pertaining to development
                                        7
density, capacity, design, and methods. A “STRATEGY” also requires “the preparation
of a master development or specific plan for any development on the Banning Ranch
specifying lands to be developed, preserved, and restored, land uses to be permitted,
parcelization, roadway and infrastructure improvements, landscape and streetscape
improvements, development regulations, architectural design and landscape guidelines,
exterior lighting guidelines, processes for oil operations consolidation, habitat
preservation and restoration plan, sustainability practices plan, financial implementation,
and other appropriate elements.” Various implementation actions were also referenced
                           8
throughout this section.
              The general plan then announces “Policies Pertaining to Both Land Use
Options (Goals 6.3 and 6.4).” The first three policies pertain to “PERMITTED USES”
and discuss oil operations, an active community park, and the restoration of wetlands and

specific steps to be taken by the City to implement the policies. They may include
revisions of current codes and ordinances, plans and capital improvements, programs,
financing, and other measures that should be assigned to different City departments.”
7
              Specific limits on development include a maximum of 1,375 residential
units, a maximum of 75,000 square feet of retail commercial uses, and a maximum of 75
rooms in a facility offering overnight accommodations.
8
               In addition, section 10.9 of the natural resources element of the general plan
(entitled “Development on Banning Ranch”), provides: “Protect the sensitive and rare
resources that occur on Banning Ranch. If future development is permitted, require that
an assessment be prepared by a qualified biologist that delineates sensitive and rare
habitat and wildlife corridors. Require that development be concentrated to protect
biological resources and coastal bluffs, and structures designed to not be intrusive on the
surrounding landscape. Require the restoration or mitigation of any sensitive or rare
habitat areas that are affected by future development.”

                                              6
wildlife habitat. The fourth and fifth policies pertain to “DESIGN AND
DEVELOPMENT” in connection with the preservation of environmental resources and
the public’s views.
              The focus of this appeal as it relates to the general plan is the final section
of the land use discussion of Banning Ranch, listed under the “Policies Pertaining to Both
Land Use Options,” but designated specifically as a “STRATEGY,” a term not defined in
the general plan. We quote this section in its entirety. “LU 6.5.6 [¶] Work with
appropriate state and federal agencies to identify wetlands and habitats to be preserved
and/or restored and those on which development will be permitted.” The citations at the
end of the quote refer to Implementation Actions 14.7 and 14.11, which are listed
elsewhere in the general plan. Implementation Action 14.7 is entitled “Coordinate with
the California Resources Agency, Department of Fish and Game,” and describes various
issues on which the City should either “consult[],” “support,” or “cooperate with” this
agency. Implementation Action 14.11 is entitled, “California Public Utilities
Commission” (PUC) and states that the City “shall work with the PUC in obtaining
funding and implementing the undergrounding of remaining overhead utilities.”
              Implementation Action 14.6 is conspicuous by its absence from LU 6.5.6
and the rest of the section of the general plan pertaining specifically to Banning Ranch.
Implementation Action 14.6 is entitled “Coordinate with California Coastal
Commission.” Its text reads: “The California Coastal Commission is responsible for the
implementation of the California Coastal Act of 1976. As described [elsewhere in the
general plan], the City’s Local Coastal Program’s (LCP) Land Use Plan (CLUP) had
been certified at the time of the adoption of the updated General Plan. The City shall
work with the Coastal Commission to amend the CLUP to be consistent with the General
Plan and pursue certification of the Implementation Plan. The City shall ensure that on
certification, applications for development shall be reviewed by the City for consistency
with the certified LCP and California Coastal Act of 1976.”

                                              7
The City’s Coastal Land Use Plan, Which Specifically Excludes Banning Ranch
              Pursuant to the Coastal Act, the Coastal “Commission is required to protect
the coastal zone’s delicately balanced ecosystem.” (Bolsa Chica Land Trust v. Superior
Court (1999) 71 Cal.App.4th 493, 506 (Bolsa Chica).) Banning Ranch is within the
“‘[c]oastal zone’” (Pub. Resources Code, § 30103) and is therefore subject to the Coastal
Commission’s jurisdiction.
              Among other things, the Coastal Act “provides heightened protection to”
ESHAs within the coastal zone. (Bolsa Chica, supra, 71 Cal.App.4th at p. 506.)
“‘Environmentally sensitive area’ means any area in which plant or animal life or their
habitats are either rare or especially valuable because of their special nature or role in an
ecosystem and which could be easily disturbed or degraded by human activities and
developments.” (Pub. Resources Code, § 30107.5.) “Environmentally sensitive habitat
areas shall be protected against any significant disruption of habitat values, and only uses
dependent on those resources shall be allowed within those areas.” (Pub. Resources
Code, § 30240, subd. (a).) “Development in areas adjacent to environmentally sensitive
habitat areas . . . shall be sited and designed to prevent impacts which would significantly
degrade those areas, and shall be compatible with the continuance of those habitat . . .
areas.” (Pub. Resources Code, § 30240, subd. (b).)
              “A combination of local land use planning procedures and enforcement to
achieve maximum responsiveness to local conditions, accountability, and public
accessibility, as well as continued state coastal planning and management through a state
coastal commission are relied upon to insure conformity with the provisions of the act
[citation]. Therefore, all local governments lying in whole or in part within the coastal
zone had to prepare and submit to the Commission a local coastal plan (LCP) [citation].
The LCP consists of a local government’s ‘(a) land use plans, (b) zoning ordinances,
(c) zoning district maps, and (d) within sensitive coastal resources areas, other
implementing actions, . . . .’ [Citation.] The precise content of each LCP is determined

                                              8
by the local government in full consultation with the Commission [citation] and must
meet the requirements of, and implement the provisions and policies of [the act] at the
local level [citation].” (Yost v. Thomas (1984) 36 Cal.3d 561, 566.)
              In 2005, the City obtained Coastal Commission approval of its coastal land
use plan (Pub. Resources Code, § 30108.5) — a key facet of its local coastal program
(Pub. Resources Code, § 30108.6). The City has not submitted an implementation plan to
the Coastal Commission, however, so it was not able to issue coastal development
permits on its own. Hence, all new applications for coastal development permits must be
processed by the Coastal Commission.
              Despite its inability to issue coastal development permits, “[t]he City
reviews pending development projects for consistency with the General Plan, Zoning
regulations, and the [coastal land use plan], before an applicant may file for a [coastal
development permit] with the Coastal Commission.” And the City’s coastal land use
plan, Policies 4.1.1-1, states: “Define any area in which plant or animal life or their
habitats are either rare or especially valuable because of their special nature or role in an
ecosystem and which could be easily disturbed or degraded by human activities and
developments as an [ESHA].” The City’s coastal land use plan sets forth criteria for
determining if a habitat is an ESHA, and includes a presumption that habitat meeting the
prescribed criteria is ESHA, subject to rebuttal by “site-specific evidence.”
              Banning Ranch, however, is specifically excluded from the scope of the
CLUP. “A Deferred Certification Area . . . refers to an area where both the land use plan
and implementing actions plan have been deferred to some future date in order to avoid
delay in certifying the balance of the [coastal land use plan]. The Coastal Commission
retains permit jurisdiction in all deferred certification areas. [¶] Newport Banning Ranch
is a [Deferred Certification Area].” The City’s coastal land use plan policies “[d]esignate
the Banning Ranch property as an area of deferred certification until such time as the
future land uses for the property are resolved and policies are adopted to address the

                                              9
future of the oil and gas operations and the protection of the coastal resources on the
property.”
              In sum, the City would ordinarily be obligated under its coastal land use
plan to identify ESHAs in its review of a coastal project. But the City’s coastal land use
plan explicitly excludes Banning Ranch from its scope.


The City Does Not Acquire Banning Ranch; Instead, Development is Proposed
              As one can well imagine, 400 acres of coastal property in Orange County
does not come cheap. A pricing study commissioned by the City indicated it could take
between $184 million to $211 million to acquire Banning Ranch, although the amount
might be reduced to a range of $138 million to $158 million if the entire property were
purchased in a single transaction. These purchase prices would not include the cost of oil
field clean up and remediation. After efforts to obtain funding from a variety of sources
foundered, the City ultimately concluded that acquisition of Banning Ranch for
preservation as open space in its entirety (i.e., the preferred outcome specified in the
general plan) was infeasible.
              Parallel with the City’s exploration of the possibility of acquiring Banning
                                                                                       9
Ranch, a development proposal was formally submitted to the City in August 2008. The
proposal precisely tracks upper limits for development set forth in the general plan (e.g.,
number of residential units, amount of commercial space) and indicates that the majority
of Banning Ranch will be preserved as open space. The proposal includes a planned
community development document, designed to address the City’s strategy to develop a
master plan for Banning Ranch’s development.



9
              The general plan endorses the dual-track pursuit of development
“entitlement[s] and permits for a residential village during the time allowed for
acquisition as open space.”

                                             10
              The proposal “documented and mapped the extensive field survey work
that the environmental team has done on potential special status habitats (potential
ESHA), as demonstrated in the Biological Technical Report.” The referenced biological
technical report, prepared by Glenn Lukos Associates, Inc., identifies “potential ESHA in
                                                          10
accordance with the City’s Coastal Land Use Policies.”         A map of Banning Ranch
identifying potential ESHA and non-ESHA areas was also included with the report.


Draft Environmental Impact Report
              “With narrow exceptions, CEQA requires an EIR whenever a public agency
proposes to approve or to carry out a project that may have a significant effect on the
environment.” (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 390 (Laurel Heights).) “The Legislature has made clear that an
EIR is an ‘informational document’ and that ‘[t]he purpose of an environmental impact
report is to provide public agencies and the public in general with detailed information
about the effect which a proposed project is likely to have on the environment; to list
ways in which the significant effects of a project might be minimized; and to indicate
alternatives to such a project.’” (Id. at p. 391.) “The EIR is the primary means of
achieving the Legislature’s considered declaration that it is the policy of this state to ‘take
all action necessary to protect, rehabilitate, and enhance the environmental quality of the
state.’ [Citation.] The EIR is therefore ‘the heart of CEQA.’” (Id. at p. 392.)
10
              This 2008 “draft” biological technical report was not included in the
administrative record prepared by the City. The court granted the City’s motion to strike
the document from the record, finding fault with the Conservancy’s tardy attempt to
lodge this document rather than filing a timely motion to augment the administrative
record. We sidestep the issue of whether the court’s ruling was proper by considering
this document to be part of the record. In our view, the inclusion of this document in the
record makes no difference to the outcome of this appeal. Moreover, by considering the
excluded document, we avoid the appearance that the City gained an advantage in this
case by excluding (whether intentionally or unintentionally) a document from the
administrative record.

                                              11
              “Under CEQA, the public is notified that a draft EIR is being prepared
[citations], and the draft EIR is evaluated in light of comments received. [Citations.] The
lead agency then prepares a final EIR incorporating comments on the draft EIR and the
agency’s responses to significant environmental points raised in the review process.
[Citations.] The lead agency must certify that the final EIR has been completed in
compliance with CEQA and that the information in the final EIR was considered by the
agency before approving the project. [Citation.] Before approving the project, the
agency must also find either that the project’s significant environmental effects identified
in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by
the project’s benefits.” (Laurel Heights, supra, 47 Cal.3d at p. 391, fn. omitted.)
              A notice of preparation of an EIR concerning the Project was distributed in
March 2009 to affected individuals and agencies, including the Coastal Commission.
After years of study and preparation, a 1,400-page draft EIR, with 5,560 additional pages
in the appendices, was completed in September 2011.
              The draft EIR devotes approximately 625 pages (including the biological
technical report as an appendix) to the analysis of biological resources at Banning Ranch.
This analysis is based on biological surveys conducted by BonTerra Consulting from
2008 through 2011 and by Glenn Lukos Associates, Inc. (i.e., the same firm that
submitted the biological technical report in 2008), from 1998 to 2002 and 2006 to 2011.
The material in the draft EIR is longer and more detailed than the 2008 draft biological
technical report. It breaks down to the hundredth of an acre the precise vegetation types
at Banning Ranch. It features multiple, color-coded maps identifying the various forms
of vegetation. The analysis likewise bores into details concerning the animal life in
Banning Ranch, using text and maps to provide an in-depth view of wildlife at Banning
Ranch. And the draft EIR analyzes the effects of the Project on habitat, special status
species, and other biological resources, using charts and maps to illustrate the impacts
described in the textual analysis.

                                             12
               The draft EIR also describes the development proposal in depth, dividing
the proposed uses of Banning Ranch down to the tenth of an acre. It specifies which oil
production facilities and infrastructure would be removed, and which areas would
continue to be used for oil production “on an interim basis.” It pinpoints the areas of
Banning Ranch that would be used as natural open space, public parks, residences, and
mixed-use. It provides for circulation and parking improvements. Maps of Banning
Ranch illustrate the planned development with color-coding and detailed labeling.
               In discussing the Coastal Act, the draft EIR states: “The Project site is
within the boundary of the Coastal Zone. . . . The Project is considered consistent with
the applicable land use policies of the . . . Coastal Act. . . .” With regard to the Coastal
Act’s general rule prohibiting development of ESHAs, “[s]ection 4.6.4 of this [draft EIR]
has identified and mapped the vegetation types and special status species occurrences
known to occur within the Project Site. The Project and associated mitigation measures
avoid, minimize, and compensate for the placement of development within these areas to
prevent a substantial degradation of these areas or significantly disrupt habitat values.
The determination of what areas would be regulated as ESHA would be made by the
Coastal Commission as part of the [coastal development permit] process for the Project.”
               Thus, the draft EIR does not actually label sectors of Banning Ranch as
ESHA or potential ESHA. Instead, after noting Banning Ranch’s status as a deferred
certification area within the City’s coastal land use plan, the draft EIR defers to the
Coastal Commission the determination of whether and to what extent ESHAs are present
at Banning Ranch. The draft EIR repeatedly notes that the Project cannot go forward
without a coastal development permit from the Coastal Commission, something the City
could not provide at the Banning Ranch site. Indeed, the draft EIR acknowledges that
multiple other federal, state, and local agencies will need to approve the Project before it
can proceed.



                                              13
Response to Comments and Final Environmental Impact Report
              In March 2012, the final EIR was produced, collecting comments,
responding to comments, issuing clarifications and revisions, and adopting additional
appendices. These new components added approximately 2,200 pages to the draft EIR,
bringing the EIR grand total to over 9,000 pages. We focus solely on those aspects
pertinent to the issues raised in this appeal.
              Negative comments concerning the draft EIR’s failure to designate ESHAs
were received from both the Conservancy’s members and Coastal Commission staff. We
highlight several of the objections raised in the Coastal Commission’s letter. The letter
first objects to the procedure contemplated by the City, recommending that the City
consider the Project “in the context of a Local Coastal Program review” rather than the
current plan to submit the Project for a coastal development permit without having
undergone the initial review. Noting “the scope and complexity of the proposed project,”
the letter suggests the City’s proposed process would prove “unworkable.” The letter
requests “that the EIR process incorporate a determination of probable ESHA areas and
their required buffers” and further requests that the Coastal Commission’s staff biologists
have the opportunity to review such designations prior to EIR finalization. The letter
opines that a “preliminary analysis” indicates the Project proposed in the draft EIR could
not be compatible with the Coastal Act, in part because a planned “four lane arterial road
                                                                                      11
in the proposed location would result in significant, unavoidable impacts to ESHA.”
11
                 The Conservancy suggests that the City’s motivation for declining to
identify ESHAs in the draft EIR stemmed from its desire to build roads that would
necessarily infringe on ESHAs. In February 2009 correspondence, Glenn Lukos
Associates, Inc., noted that changes to the habitat restoration plan for Banning Ranch
would be required as a result of “the proposed road circulation network requested by the
City . . . as a public benefit. . . . [T]he changes associated with the Proposed Project
would significantly impact scrub, wetlands, and riparian habitat that would be considered
[ESHA] pursuant to the City’s Coastal Land Use Plan . . . Policies as well as the [Coastal
Act]. It is important to note that impacts to ESHA are prohibited . . . except for certain
allowable uses, and the proposed [road] connectors would be problematic to the [Coastal

                                                 14
              The City responded to the critique that it should designate ESHAs as part of
the CEQA process. The “purpose of an EIR is to analyze the impacts of a proposed
project on the physical environment. The Draft EIR analyzes the proposed Project and its
impact on biological resources . . . . In so doing, the City has fulfilled its obligation
under CEQA to analyze the significant impacts of a project on the physical environment.
To what extent these areas constitute ESHA — a concept unique to the Coastal Act — is
a finding within the discretion of the Coastal Commission, or a local agency as part of its
local coastal program certification process. While the Draft EIR must identify a project’s
impact on the environment, including biological resources such as sensitive species and
sensitive native vegetation, it is not required to make a finding pursuant to the Coastal
Act. That would be within the discretion and authority of the Coastal Commission when
this Project comes before them. [¶] For other coastal projects, the Coastal Commission
has identified a variety of habitats and resources as ESHA which include, but are not
limited to, coastal bluff scrub, coastal sage scrub, riparian scrub, freshwater marsh, and
habitat occupied by listed species. These habitats and resource, and many others, have
been quantified, qualified, and graphically illustrated in the Draft EIR and supporting
Biological Technical Report for the proposed Project. This technical information is
available to the Coastal Commission for their consideration of ESHA in accordance with
the Coastal Act.”
              In response to criticism that it should apply its coastal land use plan in the
draft EIR, the City explained that Banning Ranch is not currently covered by the City’s
coastal land use plan. “Consequently, the Applicant is proposing to apply for a Coastal


Commission].” “The Proposed Project would include a north/south connection . . . that
would cross through a large portion of project open space containing areas of ESHA as
well as areas proposed for habitat restoration . . . .”
               The four lane arterial road extension is proposed as consistent with the
Orange County Transportation Authority’s map of arterial networks. Included in the EIR
is an analysis of an alternative that excludes the disputed road extension.

                                              15
Development Permit to implement its proposed Project. The Coastal Commission’s
comments regarding the level of detail required for a Coastal Development Permit will be
forwarded to the Applicant for its consideration in preparing its application to the Coastal
Commission.” The City also acknowledged in an additional response to comments that
the Coastal Commission had already “identified areas of ESHA on the Project site” in an
unrelated proceeding — a .21-acre portion and a .46-acre portion — but reiterated that
“the Coastal Commission has not made an ESHA determination for the remainder of”
Banning Ranch.
              In short, the City stands by the position taken in the draft EIR: it is
unnecessary for the City (whether under CEQA, the Coastal Act, or its own coastal land
use plan) to identify ESHAs in the EIR.


Approval of the Project
              On July 23, 2012, the City held a public hearing on the Project. At the
conclusion of the hearing, the City adopted a series of resolutions, which, taken together,
amounted to approval of the Project. Among other things, the resolutions: (1) certified
the final EIR, (2) approved the Project’s master development plan (and related
entitlement changes), (3) approved zoning changes to Banning Ranch, and (4) approved
the development agreement between the City and Project proponents.
              The City found that the “Project would have direct and indirect impacts on
habitat and special status species associated with oilfield remediation, grading,
construction, and long-term use of the Project site. Grading activities could impact
several sensitive natural communities on the Project site.” But the impact of the Project
on the biological resources at Banning Ranch “is Less Than Significant as a result of the
implementation” of mitigation measures. The City also found that the “Project is
consistent with the goals and policies of the General Plan.”



                                             16
Procedural History of Mandamus Action
              In August 2012, the Conservancy petitioned for a writ of mandate on the
grounds that the EIR was legally inadequate and the City violated its own general plan by
approving the Project. The Conservancy requested that the City’s approval of the Project
be set aside and that the court order the City to comply with its legal obligations under
CEQA and the Planning and Zoning Law.
              The court took the matter under submission after briefing and oral
argument. It granted the petition for writ of mandate in part, based on its conclusion “that
the General Plan Amendment implementing the Project, and the Project itself, as
approved, is inconsistent with the General Plan, particularly [land use policies] 6.3 and
6.4, and more specifically [land use policy] 6.5.6, in that the City failed to coordinate and
work with the Coastal Commission in identifying which wetlands and habitats present in
Banning Ranch would be preserved, restored or developed, prior to its approval of the
Project.” The court’s analysis on this point was driven by California Native Plant
Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603 (Native Plant).
              The court denied relief to the Conservancy with regard to its CEQA
allegations. The Conservancy’s primary argument was “that the City failed to identify
potential ESHAs on the Project site and deal with that potentiality in the EIR. [The
Conservancy] uses that as a basis for arguing: 1) that the EIR did not properly describe
the baseline; 2) that the EIR improperly deferred the identification and imposition of
mitigation measures; 3) that the EIR did not contain a proper description of the Project;
4) that the EIR was based on incomplete data and analysis; 5) that the EIR had to be
recirculated; and 6) that the EIR failed to adequately analyze alternatives.” The court
cited Banning Ranch Conservancy v. City of Newport Beach (2012) 211
Cal.App.4th 1209 (Banning Ranch I) in rejecting the notion that CEQA requires a city to
predict in its EIR the ESHAs that will be designated by the Coastal Commission in the
future.

                                             17
              Judgment was entered and a peremptory writ of mandate issued in January
2014. The writ of mandate stated in relevant part that the City “shall set aside and vacate
all approvals relating to the Project except as to the approval of the environmental impact
report and take no further steps toward approving or otherwise implementing the
development of the Project site unless and until [the City] fully compl[ies] with Policy
LU 6.5.6 in accordance with this Court’s aforementioned determination.”


                                      DISCUSSION


Consistency of Project with General Plan
              “We review decisions regarding consistency with a general plan under the
arbitrary and capricious standard. These are quasi-legislative acts reviewed by ordinary
mandamus, and the inquiry is whether the decision is arbitrary, capricious, entirely
lacking in evidentiary support, unlawful, or procedurally unfair. [Citations.] Under this
standard, we defer to an agency’s factual finding of consistency unless no reasonable
person could have reached the same conclusion on the evidence before it.” (Endangered
Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.) “‘It is,
emphatically, not the role of the courts to micromanage these development decisions.’
[Citation.] Thus, as long as the City reasonably could have made a determination of
consistency, the City’s decision must be upheld, regardless of whether we would have
made that determination in the first instance.” (Native Plant, supra, 172 Cal.App.4th at
p. 638.) We review the City’s decision and do not defer to the trial court. (Id. at p.
        12
637.)


12
             The Conservancy argues our level of deference to the City should be
reduced because the City’s general plan was endorsed by the voters in a referendum. A
similar argument was rejected, persuasively, in San Francisco Tomorrow v. City and
County of San Francisco (2014) 229 Cal.App.4th 498, 515-516.

                                             18
              The primary general plan policy at issue is LU 6.5.6 (which can be
described, consistent with the general plan, as a “policy,” a “strategy,” or both):
“Coordination with State and Federal Agencies [¶] Work with appropriate state and
federal agencies to identify wetlands and habitats to be preserved and/or restored and
those on which development will be permitted.” Also of note is LU 6.4, the alternative
policy allowing development, pursuant to which the general plan requires “the
preparation of a master development or specific plan for any development on the Banning
Ranch specifying lands to be developed, preserved, and restored . . . .” A master
development plan was approved by the City; this plan (among other documents)
identifies lands to be developed, preserved, or restored as part of the Project.
              The Conservancy’s claim, accepted by the court, is that the City neither
coordinated nor worked with the Coastal Commission (an “appropriate” state agency in
LU 6.5.6) to identify wetlands and other habitats to be preserved, restored, or developed.
The Conservancy insists that the only reasonable interpretation of the general plan is that
the City must work with the Coastal Commission to decide the appropriate uses of
habitats before Project approval. Recall that the general plan states, “Policies provide
guidance to assist the City as it makes decisions relating to each goal. Some policies
include guidelines or standards against which decisions can be evaluated.” (Italics
added.) The Conservancy asserts that LU 6.5.6 is just such a policy, and that the City’s
process leading up to the approval of the Project fell short of what LU 6.5.6 required,
thereby making the Project inconsistent with the general plan. By the City’s own
admission, the Project has not yet received Coastal Commission assent. To the contrary,
Coastal Commission staff in their comments to the draft EIR criticized (at least based on
their preliminary review of the Project) the City’s approach thus far (e.g., not analyzing
the Project under the City’s coastal land use plan, not identifying ESHA in the EIR, and
allowing road improvements through areas that include probable ESHA).



                                             19
              The City’s counterargument takes two tacks. First, the City marshals
evidence of its interactions with federal and state agencies. The City distributed a Notice
of Preparation of an EIR to a lengthy list of state agencies concerned with land use issues
at Banning Ranch, including the Coastal Commission. Several of these agencies,
including the Coastal Commission, provided comments to the City concerning the draft
EIR. The National Marine Fisheries Service, a federal agency, attended a scoping
meeting early in the environmental review process and provided oral comments. The
United States Army Corps of Engineers concurred with a determination of its jurisdiction
over certain wetlands at Banning Ranch. Consultation procedures under the Endangered
Species Act were initiated with the United States Department of Fish and Wildlife.
              City staff members and consultants even met with Coastal Commission
staff about the Project and responded in some measure to Coastal Commission concerns.
An in-person meeting occurred on March 30, 2011 at which various aspects of the
proposed Project were discussed. In April 2011, instructions were provided to a
biological resource consultant “to beef up” the EIR in some respect to address Coastal
Commission concerns. Coastal Commission staff again met in person in 2012 with
“Banning Ranch rep[resentatives] and advised them that we were not satisfied by the
response to our comments in the [draft] EIR and advised them that they will need to fully
address those comments if/when the project is submitted to the Commission. Since then,
some of our staff including our staff biologists have had a staff visit and I believe they
underscored the need for further study during that site visit.”
              Much of this evidence can fairly be characterized as compliance, in part,
with LU 6.5.6. The City certainly worked with federal and state agencies, including the
Coastal Commission, before approving the Project. But none of this evidence addresses
the lack of coordination with the Coastal Commission prior to Project approval on the
Project’s identification of habitats for preservation, restoration, or development. Instead,
the record seems clear that the Project’s choices as to habitat preservation, restoration,

                                             20
and development were made by the project proponents and the City. The Coastal
Commission was certainly put on notice that the Project had been proposed and that an
environmental review process had been initiated. The Coastal Commission (through its
staff) took advantage of the opportunity to comment on the draft EIR and even met with
Project proponents and the City on a few occasions. But it cannot fairly be said that the
City worked with the Commission prior to Project approval to identify habitats for
preservation, restoration, or development.
              To this point, the City’s second contention is that the Conservancy’s
interpretation of LU 6.5.6 is not the only reasonable interpretation, and that this court is
required to defer to the City’s interpretation of its own general plan in making its
consistency finding. To wit, the City suggests compliance with LU 6.5.6 is not limited to
its conduct prior to Project approval. LU 6.5.6 does not say that the Coastal Commission
(or its staff) must sign off on the land uses contemplated by the Project before the City
approves the Project. Instead, LU 6.5.6 asserts a vague strategy to “work with” all
pertinent state and federal agencies. There is no temporal cut off for the completion of
this vague strategy.
              The City asserts its process is perfectly legitimate under LU 6.5.6: (1)
“[w]ork with” all interested agencies to the extent of notifying them of the Project,
meeting with agency representatives upon request, and taking their views into
consideration during the Project review process; (2) approve (or not) the Project after
completing CEQA requirements and measuring the Project for consistency with the
general plan; and (3) continue to “[w]ork with” agencies from whom additional approvals
and permits are necessary, including the Coastal Commission, which might determine
that ESHA at Banning Ranch requires the Project to be altered. According to the City, it
was free under LU 6.5.6 to reject the preferred procedure suggested by the Coastal
Commission’s comment letter, i.e.: (1) review the Project under the City’s coastal local
use plan, notwithstanding Banning Ranch’s exclusion (as a deferred certification area)

                                              21
from this plan; (2) identify in the Project planning documents all ESHAs within Banning
Ranch; (3) eliminate any development that would affect an ESHA; (4) continue
coordinating with Coastal Commission staff until the Project was up to snuff in the
Coastal Commission staff’s opinion; and (5) approve (or not) the Project.
              In addition to its repeated acknowledgement that the Coastal Commission
must provide a coastal development permit before the Project proceeds, the City also
cites various mitigation measures included in the EIR as proof that it intends to “[w]ork
with” the Coastal Commission in the future. Each of these measures references
individual federal and state agencies (including the Coastal Commission) that must
approve of the implementation plan for these measures to go into effect.
              Our review of the general plan and the record in this case leads us to
conclude that the City’s interpretation of the process contemplated by LU 6.5.6 and its
ensuing consistency finding are reasonable. This “strategy” (or policy) is simply too
vague on its face to impose a mandatory requirement on the City that it complete an
unspecified level of coordination with the Coastal Commission before the City’s approval
of the Project (e.g., by complying, in part or in full, with the suggestions provided by the
Coastal Commission in its comment letter). Given the lack of measurable standards as to
the extent or timing of the coordination required, it was rational for the City to conclude
that LU 6.5.6 was designed as a helpful reminder of the City’s legal obligations to “work
                                                                           13
with” all necessary agencies in the course of developing Banning Ranch.         This “work”
13
               The trial court thought that LU 6.5.6 logically must mean something
beyond simply complying with preexisting legal obligations (e.g., to notify appropriate
agencies about the Project, to obtain necessary permits), else what would be the point of
including it in the general plan? (See, e.g., Pub. Resources Code, §§ 30600, 30604
[coastal development permit issuance by Coastal Commission]; Cal. Code Regs., tit. 14,
§ 15086, subd. (a) [lead agency shall consult with and request comments from other
agencies following preparation of draft EIR].) But not every sentence in a general plan
creates a new legal obligation. Indeed, the City’s general plan implicitly acknowledges
that not every “Policy” creates guidelines or standards against which the City’s behavior
can be measured.

                                             22
would, of course, center on the question of which segments of Banning Ranch would be
preserved, which would be restored, and which would be developed. But it was up to the
City to decide precisely how this strategy of working with concerned agencies would be
implemented. The City’s decision to forego additional engagement with the Coastal
Commission prior to Project approval did not make the Project inconsistent with the
general plan.
                The trial court ruled to the contrary, applying what it deemed to be binding
precedent. (See Native Plant, supra, 172 Cal.App.4th 603.) Native Plant held that
Rancho Cordova violated its general plan by its failure to sufficiently coordinate with the
United States Fish and Wildlife Service (the Service) in designing mitigation measures in
connection with a development project. (Id. at p. 608.)
                The Native Plant project concerned a 530 acre site at which a mix of
development and preservation was proposed. (Native Plant, supra, 172 Cal.App.4th at p.
608.) The project site featured vernal pools and seasonal wetland vegetation, which


                 We have not been pointed to any authority indicating that the City is
required under the Coastal Act to identify ESHA in a project not covered by a coastal
land use plan. (See, e.g., Cal. Code Regs., tit. 14, § 13052 [setting forth minimum
“preliminary approvals” before request for coastal development permit will be accepted
for filing; list of requirements does not include ESHA designations].) The closest the
Conservancy comes to supporting such a claim is the following section from the Coastal
Act: “The commission shall, to the maximum extent feasible, assist local governments . .
. . Similarly, every public agency, including . . . local governments, shall cooperate with
the commission and shall, to the extent their resources permit, provide any advice,
assistance, or information the commission may require to perform its duties and to more
effectively exercise its authority.” (Pub. Resources Code, § 30336.) The Conservancy
reasons that once the Commission requested the City to do something in its comment
letter, it was the City’s obligation to follow up on the request. We agree with the City
that an ESHA designation is a legal conclusion, not the sort of cooperation mandated by
Public Resources Code section 30336. There is no authority for the proposition that the
City violated its statutory duty to cooperate with the Coastal Commission by not
including ESHA designations in its EIR. And regardless, there is not a Coastal Act claim
before this court. This case is about the City’s obligations under the general plan and
CEQA.

                                              23
provided “habitats for two species of vernal pool crustaceans — vernal pool fairy shrimp
and vernal pool tadpole shrimp — that are listed as threatened and endangered
(respectively) under the federal Endangered Species Act of 1973.” (Id. at p. 609.) In the
spring of 2004, the Service, in conjunction with other federal agencies, jointly created a
“conceptual-level strategy” composed of principles and standards designed to protect
aquatic resource habitats at the site. (Id. at p. 609.) Both after the proposed project was
announced in September 2004 and after the release of the draft EIR in October 2005, the
Service commented that the proposed project appeared to be inconsistent with the
conceptual-level strategy endorsed by the Service. (Id. at pp. 610-612.) Rancho Cordova
nonetheless approved the project. (Id. at p. 612.)
              Among other contentions, it was argued that Rancho Cordova violated its
general plan by failing to comply with Policy NR 1.7, which “provides that ‘[p]rior to
project approval the City shall require a biological resources evaluation for private and
public development projects in areas identified to contain or possibly contain listed plant
and/or wildlife species based upon the City’s biological resource mapping provided in the
General Plan EIR or other technical materials.’ To implement this policy, Action
NR.1.7.1 provides that ‘[f]or those areas in which special-status species are found or
likely to occur or where the presence of species can be reasonably inferred, the City shall
require mitigation of impacts to those species that ensure that the project does not
contribute to the decline of the affected species populations in the region to the extent
that their decline would impact the viability of the regional population. Mitigation shall
be designed by the City in coordination with the . . . Service . . . and the California
Department of Fish and Game (CDFG), and shall emphasize a multi-species approach to
the maximum extent feasible. This may include development or participation in a habitat
conservation plan.’” (Native Plant, supra, 172 Cal.App.4th at p. 635.)
              It was undisputed that the site contained special-status species. (Native
Plant, supra, 172 Cal.App.4th at p. 639.) Rancho Cordova “[u]nquestionably” included

                                              24
mitigation provisions in the project. (Id. at p. 640.) And there was sufficient evidence in
the record for Rancho Cordova to reasonably conclude that its mitigation measures were
consistent with the substantive requirements set forth in Action NR 1.7.1. (Ibid.) But
Rancho Cordova did not coordinate with the Service in designing the project’s mitigation
measures. (Id. at pp. 640-642.) Rancho Cordova posited that its obligation to coordinate
with the Service was met by consulting with the Service, i.e., by soliciting comments to
the project and draft EIR, by considering those comments, and by responding to
comments in the final EIR. (Id. at p. 641.) But, given the language in its general plan,
the appellate court held it was unreasonable for Rancho Cordova to construe the words
“coordination with” as meaning mere consultation. (Ibid.) “[W]e cannot reasonably
deem this ‘coordination’ requirement satisfied by the mere solicitation and rejection of
input from the agencies with which [Rancho Cordova] is required to coordinate the
design of mitigation measures for the Project. Although our standard of review . . . is
highly deferential, ‘deference is not abdication.’” (Id. at p. 642.)
              The Conservancy is correct that the City’s level of interaction thus far with
the Coastal Commission was closer to consultation than coordination, as defined in
Native Plant. The Conservancy is also correct that, like the Native Plant case, the lack of
coordination here could be counterproductive for the City in that the Coastal Commission
could ultimately refuse to issue development permits. (See Native Plant, supra, 172
Cal.App.4th at p. 642 [reasoning that the Service’s role in deciding whether the project
would obtain a federal permit at the project site explained why the general plan would
require pre-approval coordination with the Service].)




                                             25
              But the City’s LU 6.5.6 is not as clear as Rancho Cordova’s NR 1.7.1. In
the context of discussing the substantive requirements for mitigation, NR 1.7.1 issues a
specific command to Rancho Cordova to coordinate with a specific agency (“Mitigation
shall be designed by the City in coordination with the . . . Service”) to accomplish a
specific task (i.e., the design of the mitigation measures). (Native Plant, supra, 172
Cal.App.4th at p. 635.) The mitigation at issue pertained to a biological resources
evaluation that had to occur “prior to project approval.” (Cf. Endangered Habitats
League, Inc. v. County of Orange, supra, 131 Cal.App.4th at pp. 793-796 [mitigation
measures cannot be deferred to date beyond EIR certification].)
              In contrast, LU 6.5.6 (entitled “Coordination with State and Federal
Agencies”) does not compel coordination with the Coastal Commission prior to approval
of the Project: “Work with appropriate state and federal agencies to identify wetlands
and habitats to be preserved and/or restored and those on which development will be
permitted.” The Coastal Commission is not mentioned in the text or in the referenced
implementation actions. There is no indication in LU 6.5.6 that this “work” must be
completed before the City approves the Project. Whereas coordination in design suggests
work done together at the beginning of the process, coordination in identification can be
more naturally construed as an ongoing process. LU 6.5.6 is vague and ambiguous — the
Conservancy’s position depends on inferences made after considering multiple sections
of the general plan; NR 1.7.1 is more resistant to multiple interpretations as to the timing
of coordination. (Cf. Families Unafraid to Uphold Rural etc. County v. Board of
Supervisors (1998) 62 Cal.App.4th 1332, 1341 [county must comply with policy that is
“fundamental . . . mandatory and anything but amorphous”].)
              With that said, we acknowledge that Native Plant is not easily
distinguished. Thus, to the extent the holding of Native Plant applies to this case, we
reject its reasoning as incompatible with our deferential review of the City’s legislative
acts. After acknowledging the limits of its review (Native Plant, supra, 172

                                             26
Cal.App.4th at pp. 637-638), the Native Plant court proceeded to fault the City for failing
to give the proper interpretation to a vague term — “coordination with.” But,
recognizing that the general plan itself did not make clear what “coordination with”
meant in practical terms, the appellate court declined to give guidance as to what Rancho
Cordova needed to do to comply with the coordination requirement. “[W]e do not read
this ‘coordination’ requirement as ‘requir[ing] the City to subordinate itself to state and
federal agencies by implementing their comments and taking their direction.’ At the
same time, however, we cannot reasonably deem this ‘coordination’ requirement satisfied
by the mere solicitation and rejection of input from the agencies with which the City is
required to coordinate the design of mitigation measures for the Project.” (Id. at p. 642.)
In other words, Rancho Cordova needed to do something in between consultation and
capitulation. The appellate court declined to dictate the terms of the writ of mandate,
leaving it to the trial court. (Id. at pp. 642-643.) Perhaps a good faith negotiation
between Rancho Cordova and the Service should have occurred. Perhaps a minimum
number of hours should have been devoted by Rancho Cordova toward reaching
consensus with the Service. Perhaps the project developers should have been required to
meet with the Service prior to submitting their project to Rancho Cordova. These might
be good or bad ideas. But none of them were in the general plan. And any other specific
requirement the trial court might have tried to impose would likewise by necessity be
designed out of whole cloth.
              The same problem played out here at the trial court. The writ of mandate
issued by the court prevents the City from “approving or otherwise implementing the
development of the Project site unless and until [the City] fully compl[ies] with Policy
LU 6.5.6 in accordance with this Court’s aforementioned determination.” The
aforementioned determination was that “the City failed to coordinate and work with
the . . . Coastal Commission in identifying which wetlands and habitats present on the
Project site would be preserved, restored or developed, prior to your approval of the

                                             27
Project.” The court does not explain what it means, in practical terms, to coordinate and
work with the Coastal Commission prior to project approval. Presumably, it is something
in between consultation and capitulation. But the lack of specific guidance in the general
plan indicates to us that it is unreasonable to find the City’s view of LU 6.5.6 to be
arbitrary. It is improper for courts to micromanage these sorts of finely tuned questions
of policy and strategy that are left unanswered by the general plan. Cities are free to
include clear, substantive requirements in their general plans, which will be enforced by
the courts. But courts should not invent obligations out of thin air.


Adequacy of EIR Under CEQA
              “In reviewing an agency’s compliance with CEQA in the course of its
legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether
there was a prejudicial abuse of discretion.’ [Citation.] Such an abuse is established ‘if
the agency has not proceeded in a manner required by law or if the determination or
decision is not supported by substantial evidence.’” (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426, fn.
omitted.) “An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial
court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo.” (Id. at p. 427.)
              “CEQA requires an EIR to reflect a good faith effort at full disclosure . . . .”
(Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712.)
“Before the impacts of a project can be assessed and mitigation measures considered, an
EIR must describe the existing environment. It is only against this baseline that any
significant environmental effects can be determined.” (County of Amador v. El Dorado
County Water Agency (1999) 76 Cal.App.4th 931, 952.)



                                             28
              The Conservancy contends the City violated CEQA by refusing to identify
ESHAs in the EIR; all of its sub-arguments follow from this initial premise. The
Conservancy claims the City consciously avoided making this determination because it
was aware that a good faith effort in that direction could short circuit aspects of the
Project that it wished to include (e.g., the extension of a road through ESHA). At least as
early as December 2003, the City was on notice that determining which portions of
Banning Ranch were ESHAs would be an important and controversial issue. Previous
studies done by other agencies had determined that Banning Ranch included critical
habitat for the California gnatcatcher and San Diego fairy shrimp. The initial biological
study performed by Glenn Lukos Associates, Inc., in connection with the Project
application indicated that ESHAs were present at Banning Ranch. The Coastal
Commission’s comments on the draft EIR specifically indicated that roads proposed as
part of the Project “would result in significant, unavoidable impacts to ESHA.” In short,
an honest, good faith effort to categorize specific Banning Ranch habitats as ESHA (or
not) may have necessitated a reworking of the Project.
              The City’s response is that an ESHA determination is a legal determination,
ultimately made by the Coastal Commission in a project like the instant one (i.e., a
project not covered by the City’s coastal land use plan). (Cf. Chaparral Greens v. City of
Chula Vista (1996) 50 Cal.App.4th 1134, 1145 [no “requirement under CEQA that a
public agency speculate as to or rely on proposed or draft regional plans in evaluating a
project”].) All of the necessary data pertaining to biological resources and habitat at
Banning Ranch is included in the EIR. The EIR describes the environmental impacts of
the Project and mitigation measures designed to address those impacts. The
Conservancy’s complaint concerns the City’s reluctance to draw a legal conclusion based
on a review of the data, not the failure to include data or scientific analysis that would
enable a decisionmaker to classify a habitat as ESHA.



                                             29
              The City’s position is supported by our opinion in Banning Ranch I, supra,
211 Cal.App.4th at pages 1233-1234, which rejected a similar contention by the
Conservancy pertaining to a separate project. In Banning Ranch I, the Conservancy
argued that “the EIR failed to disclose the park project’s inconsistency with the Coastal
Act.” (Id. at p. 1233.) The supposed inconsistency was that the EIR “stated no area of
[the] project had been designated an ESHA, according to the City’s coastal land use plan.
It acknowledged two areas had ‘the potential to be considered . . . ESHA[s] by the
California Coastal Commission.’” (Id. at pp. 1233-1234.) The Conservancy claimed that
“the Coastal Commission is ‘highly likely’ to designate the two areas as ESHAs, and will
reject the attempted mitigation.” (Id. at p. 1234.) This court’s response was that it
“remain[ed] to be seen” whether the Coastal Commission would designate the contested
habitats as ESHAs. (Ibid.) “There are no inconsistencies at the moment; the EIR
adequately flagged potential inconsistencies and addressed them in advance through
proposed mitigation.” (Ibid.)
              Similarly, in the instant case, the City found the Project to be consistent
with the policies of the Coastal Act. The main differences between the cases are that the
City was not obligated to apply its coastal land use plan to Banning Ranch (unlike the
park project at issue in Banning Ranch I) and the City opted not to speculate about
potential ESHA at Banning Ranch in this case. Instead, the City simply deferred ESHA
determinations to the Coastal Commission. This difference between the cases is
unimportant for our purposes. The important point is that the City adequately flagged
potential inconsistencies with the Coastal Act by emphasizing (1) that the Project was
outside the scope of its coastal land use plan, and (2) that the Coastal Commission would
determine whether ESHAs were affected by the Project. Clearly, it “remains to be seen”
(Banning Ranch I, supra, 211 Cal.App.4th at p. 1234) whether the Coastal Commission
will issue a development permit for the Project as currently constituted. CEQA does not



                                             30
require the City to prognosticate as to the likelihood of ESHA determinations and coastal
development permit approval.


                                     DISPOSITION


             The judgment is reversed. The court shall set aside the peremptory writ of
mandate issued on January 15, 2014, and enter a new judgment denying relief to the
Conservancy. The City shall recover its costs on appeal.




                                                IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




                                           31
