City of Santa Cruz petition to the Supreme Court about USCS Growth by SantaCruzSentinel

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									                        No. ---------------------
       IN THE SUPREME COURT OF CALIFORNIA

                 HABITAT AND WATERSHED CARETAKERS,

                               Plaintiff and Appellant,

                                             v.

                       CITY OF SANTA CRUZ and
               CITY COUNCIL OF THE CITY OF SANTA CRUZ,

                            Defendants and Respondents.

              REGENTS OF THE UNIVERSITY OF CALIFORNIA,

                       Real Party in Interest and Respondent.


                   PETITION FOR REVIEW
From a Published Opinion of the Court of Appeal, Sixth Appellate District, No. I-I037545
          Reversing A Judgment Of The Santa Cruz County Superior Court
                No. CISCV168697, Honorable Timothy R. Volkmann

      JAMES G. MOOSE, 119374                      CHARLES F. ROBINSON, 113197
      SABRINA V. TELLER, 215759                   KELLY L. DRUMM, 172767
      JEANNIE LEE, 263716                         University of California
      REMY MOOSE MANLEY, LLP                      1111 Franklin Street, Eighth Floor
      455 Capitol Mall, Suite 210                 Oakland, CA 94607
      Sacramento, CA 95814                        Phone: (510) 987-9765
      Phone:(916) 433-2745                        Fax.    (510) 987-9757
      Fax: (916) 443-9017                         Email: kelly.drumm@ucop.edu
      Email: jmoose@rmmenvirolaw.com
             steller@rmmenvirolaw.com
             jlee@rmmenvirolaw.com
                                                  Attorneys for Real Party/Respondents
      Attorneys for Defendants/Respondents        THE REGENTS OF THE
      CITY OF SANTA CRUZ, et al.                  UNIVERSITY OF CALIFORNIA
                        [ADDITIONAL COUNSEL ON NEXT PAGE]
AMRIT S. KULKARNI, 202786       PAUL D. FOGEL, 70859
JULIA L. BOND, 166587           DENNIS PETER MAIO, 99894
MEYERS NAVE                     REED SMITH LLP
555 12th Street, Suite 1500     101 Second Street, Suite 1800
Oakland, CA 94607               San Francisco, CA 94105-3659
Phone: (510) 808-2000           Phone: (415) 543-8700
Fax:    (510) 444-1108          Fax:    (415) 391-8269
Email: amrit@meyersnave.com     Email: pfogel@reedsmith.com
        j ulia@meyersnave.com           dmaio@reedsmi th.com

                 Attorneys for Real Party/Respondents
         THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
                             TABLE OF CONTENTS

                                                                                            Page

I.     PETITION .................................................................................. 1
II.    ISSUES PRESENTED ............................................................... 1
III.   WHY REVIEW IS WARRANTED ........................................... 2
IV.    BACKGROUND ........................................................................ 9
       A.       Statement of Facts ............................................................ 9
       B.       Procedural History ......................................................... 13
V.     THIS COURT SHOULD GRANT REVIEW .......................... 14
       A.       Review Is Warranted To Clarify The Roles Of
                Lead And Responsible Agencies Under CEQA ............ 14
                1.       The Roles Of The Lead Agency And
                         Responsible Agencies Under CEQA ................... 15
                2.       The Opinion Confuses The Roles Of The
                         Lead And Responsible Agencies ......................... 18
       B.       This Court Should Grant Review To Clarify That
                When Substantial Evidence Supports A Lead
                Agency's Determination That Alternatives Are
                Infeasible And Therefore Need Not Be Analyzed
                in the EIR, The Lead Agency Need Not Analyze
                Those Alternatives For A Responsible Agency ............. 25
                1.       CEQA Requires An Analysis Of Only
                         Potentially Feasible Alternatives ......................... 26
                2.       The Opinion Requires A Lead Agency To
                         Analyze, For A Responsible Agency's
                         Purposes, An Alternative That The Lead
                         Agency Properly Determined Was Infeasible ..... 28
VI.    CONCLUSION ........................................................................ 33
WORD COUNT CERTIFICATE ....................................................... 34


                                              - 1-
                           TABLE OF AUTHORITIES
                                                                                     Page(s)
                                           Cases
California Native Plant Society v. City of Santa Cruz,
 (2009) 177 Cal.App.4th 957 ............................................ 26, 27, 28, 30
Citizens for Goleta Valley v. Board ofSupervisors
 (1990) 52 Cal.3d 553 .............................................................. 26, 30, 32
City ofRedding v. Shasta County Local Agency Formation
 Commission,
 (1989) 209 Cal.App.3d 1169 ........................................................ 16, 17
Federation ofHillside & Canyon Assns. v. City ofLos Angeles,
 (2000) 83 Cal.App.4th 1252 ............................................................. .. 28
Gentry v. City ofMurrieta,
 (1995) 36 Cal.App.4th 1359 ............................................................... 22
In re Bay-Delta Programmatic Environmental Impact Report
  Coordinated Proceedings,
  (2008) 43 Cal.4th 1143 ........................................................... 26, 27, 28
Save San Francisco Bay Association v. San Francisco Bay
  Conservation and Development Comm.,
  (1992) 10 Cal.App.4th 908 ................................................. 7, 31, 32,33
                                          Statutes
Pub. Resources Code§ 21000 et seq ............................................. passim
Pub. Resources Code§ 21002 ................................................................. 6
Pub. Resources Code § 21061 ............................................................... 20
Pub. Resources Code§ 21061.1 ............................................................ 27
Pub. Resources Code§ 21067 ..................................................... 2, 14, 15
Pub. Resources Code§ 21069 .......... .. ......................................... 2, 14, 15
Pub. Resources Code § 21080.1 ........................................................ 2, 15
Pub. Resources Code§ 21081(a)(3) ...................................................... 27

                                            - 11-
                      TABLE OF AUTHORITIES, cont'd
                                                                                      Page(s)

Pub. Resources Code§ 21081.6(c) ........................................................ 22
Pub. Resources Code§ 21167.3 .................................................. 5, 17, 24
Pub. Resources Code§ 21167.3(a) ............................................ 16, 17, 24
Pub. Resources Code§ 21167.3(b) ........................................... .l6, 17,24


                                        Regulations
14 Cal. Code Regs. § 15050 .............................................................. 2, 15
14 Cal. Code Regs.§ 15051 ................................................................... .4
14 Cal. Code Regs.§ 15052(a)(3) ......................................................... 16
14 Cal. Code Regs. § 15082 ............................................................. .4, 15
14 Cal. Code Regs.§ 15082(b) ........................................................ 15, 16
14 Cal. Code Regs.§ 15082(c) .............................................................. 16
14 Cal. Code Regs. § 15083 ................................................................... .4
14 Cal. Code Regs.§ 15086(a) .............................................................. 15
14 Cal. Code Regs. § 15086(c) .............................................................. 15
14 Cal. Code Regs. § 15086(d) .............................................................. 15
14 Cal. Code Regs. § 15091(a)(3) ......................................................... 27
14 Cal. Code Regs. § 15096 ............................................................ 15, 23
14 Cal. Code Regs.§ 15096(b) .............................................................. 16
14 Cal. Code Regs. § 15096(c) .............................................................. 16
14 Cal. Code Regs. § 15096(d) .......................................................... 4, 16
14 Cal. Code Regs. § 15096(e) ................................................... .4, 16, 20
14 Cal. Code Regs.§ 15126.6(a) ..................................................... 26, 27
14 Cal. Code Regs.§ 15126.6(c) ........................................ 27, 28, 29, 30

                                               ...
                                             - 111-
                         TABLE OF AUTHORITIES, cont'd
                                                                                                  Page(s)

14 Cal. Code Regs.§ 15162 ............................................. ..................... 16
14 Cal. Code Regs. § 15233 .................................................................. 16
14 Cal. Code Regs. § 15364 .................................................................. 27
14 CaL Code Regs.§ 15381 ........................................ .. .......................... 2
14 CaL Code Regs.§§ 15051-53 ........................................................... 15
14 CaL Code Regs. App. B ...................................................................... 8
14 CaL Code Regs. App. I ..................................................................... 15
                                        Other Authorities
2 Doyle, Silver Blaze, in The Annotated Sherlock Holmes
  [Baring-Gould ed. 1967] ..................................................................... 23
CaL Postsecondary Education Com.,
  Update on Space and Utilization Policies in Higher Education (Sept.
 2004) ..................................................................................................... 9




                                                   - lV-
                           I.     PETITION

      Respondents The City of Santa Cruz ("City") and The Regents
of the University of California ("The Regents") petition this Court for
review of the published opinion of the Court of Appeal, Sixth
Appellate District (Mihara, J., with Elia, Acting P.J., and Marquez, J.,
cone.), filed on February 19, 2013. (Ex. A, attached) The opinion
reverses a judgment of the Santa Cruz County Superior Court (Hon.
Timothy R. Volkmann, Judge), which denied a petition for writ of
mandate filed by appellant Habitat and Watershed Caretakers
(HA WC), challenging an environmental impact report (EIR) by the
City of Santa Cruz. The Opinion directs the trial court to enter a new
judgment granting the petition in part, directing the City to vacate its
certification of the final EIR and approval of the Project. (Ex. A,
attached)
      The Court of Appeal issued its original opinion on November
27, 2012. Both sides petitioned for rehearing. The Court of Appeal
granted the City's/Regents' petition but denied HA WC's petition.
The Court of Appeal then filed a new and substantially revised
opinion on February 19, 20 13. Both sides again petitioned for
rehearing, which petitions the Court of Appeal summarily denied.
(Ex. B, attached)

                     II.   ISSUES PRESENTED

      Under the California Environmental Quality Act, Public
Resources Code § 21000 et seq. ("CEQA"), when more than one
public agency will carry out or approve a project, the "lead agency" is

                                  - 1-
charged with preparing any EIR. (Pub. Resources Code,§ 21067;
Guidelines, § 15050. 1) Agencies other than the lead agency that have
discretionary approval authority over the project are "responsible
agencies," which are bound by certain of the lead agency's decisions.
(§§ 21069, 21080.1; Guidelines,§§ 15381, 15050.)

       1.    If a responsible agency participates in the process by
which a lead agency prepares an EIR for a project but does not request
analysis of a particular project alternative and does not challenge the
adequacy of the lead agency's EIR, can a court nevertheless rule that
the EIR is insufficient for the responsible agency's purposes on the
ground that the EIR did not include that alternative?

      2.     If a lead agency finds, based on substantial evidence, that
an alternative to a project is infeasible because the alternative is
unable to satisfy the project's objectives, is the lead agency
nevertheless required to analyze that infeasible alternative in an EIR,
on behalf of a responsible agency, even if the responsible agency does
not indicate that the EIR is inadequate for its purposes?

             III.    WHY REVIEW IS WARRANTED

      The Court of Appeal's Opinion creates a need to secure
uniformity of decision and settle two important questions of law under
CEQA. One issue is procedural and the other issue is substantive, but


      All further unspecified statutory references are to the California
Public Resources Code. All references to the "Guidelines" are to the
CEQA Guidelines set forth in Title 14, Division 6, Chapter 3, of the
California Code of Regulations.
                                   - 2-
both deal with the proper roles of the "lead agency" and the
"responsible agency" where more than one agency has jurisdiction
over a single project.
      To avoid development being caught in an endless labyrinth of
environmental review, CEQA and the CEQA Guidelines have created
a process to streamline the environmental review by multiple
agencies. This prevents duplicative review and provides certainty for
developers, public agencies and the public. In nullifying this process,
however, the Court of Appeal Opinion will have an immediate and
negative impact on agencies and developers that attempt to navigate
the increasingly-complex and multiple layers of government review.
      This case involves a project proposed by the City. The City
applied to the Santa Cruz Local Agency Formation Commission
(LAFCO) to amend the City's sphere of influence (SOl) so that the
City will be able to provide water and sewer services outside its
jurisdictional boundaries for an expansion of the campus of the
University of California, Santa Cruz (UCSC), which The Regents
owns and operates. For CEQA purposes, the City is the lead agency
and LAFCO is the responsible agency.
      In its EIR, the City made a finding that a "limited water"
alternative, which would provide less than the full amount of water to
the UCSC campus, was infeasible, would not meet project objectives
and would cause greater environmental impacts than the project as
proposed. For these reasons, the City did not analyze that alternative
in its EIR. LAFCO participated in the City's environmental review
process and provided comments on both the scope and the draft EIR,
but never requested that the City analyze a limited water alternative.
                                  - 3-
      The Court of Appeal holds that the City's EIR violated CEQA
for failing to analyze the limited water alternative for LAFCO's
consideration. (Opn. 25) Notably, in other parts of the Opinion, the
Court upholds the City's substantial evidence supporting the City's
determination that the limited water alternative would not meet the
project objectives and had greater environmental impacts than the
proposed project. (Opn. 35) In other words, the Court finds that the
alternative was infeasible for the City's purposes-and that substantial
evidence supported that finding-but nevertheless holds that the
City's EIR had to analyze the alternative for LAFCO's purposes. This
holding stands CEQA on its head, creates a conflict with other
reported cases, and has troubling implications for all projects in the
State that need approvals from more than one governmental agency.
      The first problem is procedural. CEQA and the Guidelines
have established a defined process for designating the lead agency,
which must then prepare the EIR or other environmental document.
(Guidelines,§ 15051.) A key aspect of this process is called
"scoping," which involves input from a responsible agency to a lead
agency regarding material the responsible agency believes must be
included in the draft EIR to make the document adequate for the
responsible agency's purposes. (Guidelines,§§ 15082, 15083.)
Another key point of responsible agency input is the formal comment
period on the draft EIR. (Guidelines,§ 15096, subd. (d).) A
responsible agency is thereafter bound by certain decisions of the lead
agency. (!d., subd. (e).)
      Notably, if the responsible agency is dissatisfied with the EIR
in any way, it must immediately challenge the EIR. The failure to do
                                  -4-
so constitutes a waiver of any objection to the EIR. (Ibid.) If a lead
agency certifies a final EIR and a responsible agency does not take
that lead agency action to court, the responsible agency is required to
treat the EIR as legally adequate even if a third party has challenged
the lead agency's action in court. (§ 21167.3.)
      The Court of Appeal, however, upsets these carefully-crafted
procedures. It holds that even where a responsible agency fully
participates in a lead agency's environmental review process and
provides comments but does not request that the lead agency's EIR
analyze a particular alternative solely for the responsible agency's use,
the EIR nevertheless violates CEQA for failing to analyze such an
alternative. The Opinion finds the City's EIR inadequate for
LAFCO's purposes even though, in failing to avail itself its right to
request the analysis the Court believes LAFCO needed, LAFCO was
statutorily-required to assume that the EIR complies with CEQA.
This holding nullifies the established statutory process for
streamlining environmental review through multiple public agencies.
      The holding has troubling implications for lead agencies under
CEQA. Under the Opinion, a lead agency will now be required to
analyze in its EIR every alternative to a project that a court might
believe, after the fact, that a responsible agency should have
requested-even though the responsible agency did not request an
analysis of any alternative. The Opinion requires this clairvoyance by
a lead agency even where the responsible agency has participated in
all stages of the lead agency's environmental review process and has
not requested any additional analysis. Such an outcome violates both
the letter of CEQA and its purpose of streamlining the environmental
                                  -5-
review process where a project needs approval from different public
agencies.
      The Opinion also has the effect ofupsetting CEQA's
substantive mandate that a lead agency must analyze feasible
alternatives to the project under consideration. CEQA prohibits the
lead agency from approving a project as proposed if a feasible
alternative exists that can substantially lessen the project's significant
environmental impact. (§ 21002.) But CEQA also gives the agency
discretion to determine that an alternative is not "feasible" when the
agency takes account of economic, environmental, social and
technological factors. . (Ibid)
      The Opinion, however, upsets this core function of CEQA. The
Court finds that substantial evidence supports both the City's project
objectives and its finding that restricting the University's ability to
develop North Campus (for example, by limiting water for
development) could simply shift new development to the main
campus, which would have greater environmental impacts than the
Project. (Opn. 24-25, 35) Under CEQA, absent a request by a
responsible agency that the lead agency analyze such an alternative,
this substantial evidence was all that was required for the City to
reject the limited water alternative as infeasible and not analyze that
alternative in the EIR. The Opinion holds, however, that the City's
rejection of the limited water alternative for analysis in the EIR lacked
substantial evidence support because, in theory, LAFCO could
approve a limited water alternative. (Opn. 31)
      Essentially, the Court creates a double standard for determining
the infeasibility of alternatives under CEQA. The upshot of the
                                   - 6-
Opinion is that, even when a lead agency properly determines that an
alternative is infeasible for its purpose, it still must analyze that
infeasible alternative if that alternative might be of use to one of
perhaps several responsible agencies, even where none of such
responsible agencies asked for such analysis.
       This holding violates CEQA' s statutory directive that a lead
agency need not analyze infeasible alternatives. The holding also
conflicts with Save San Francisco Bay Association v. San Francisco
Bay Conservation and Development Comm. (1992) 10 Cal.App.4th
908. As explained later in this Petition, that decision holds that a lead
agency need not analyze alternatives that do not meet the project
objectives, even though a responsible agency's statutory mandate
might allow that agency to approve such alternatives.
       The Opinion's holding also creates an unworkable situation for
lead agencies. Absent indication by a responsible agency, a lead
agency cannot know if analysis of an alternative is infeasible from the
lead agency's perspective will be necessary by a responsible agency.
       The Opinion also creates considerable confusion concerning
judicial review of a lead agency's selection of potentially feasible
alternatives for analysis in an EIR. A lead agency needs to know
whether project objectives and substantial evidence, as set forth in a
draft EIR, will support the lead agency's determination that an
alternative is infeasible so an EIR need not further analyze that
alternative. Under current law, a lead agency need only substantiate
that decision with substantial record evidence. Under the Opinion,
however, even acknowledged substantial evidence on that point is not
sufficient.
                                    - 7-
      Under the Opinion, a lead agency will need to expand the
alternatives analysis in its EIR to include alternatives that, from its
standpoint, are substantiated as infeasible, without any guidance on
whether any responsible agency might want, let alone need, such
analysis. This new rule will expand the environmental review
process, which will increase the time, cost and burdens associated
with that process.
      The Opinion will also have far-reaching effects. A typical
development project must secure approvals from many different
public agencies and layers of government. At a local level, cities and
counties often have some approval authority over the same project,
with LAFCOs regulating jurisdictional boundaries between the two.
Moreover, there exists a complicated matrix of 29 potential California
responsible agencies with almost 40 different types of permits that
they have the authority to issue. (See Guidelines, App. B.) Where the
responsible agencies for a project are silent with respect to the need to
analyze particular alternatives geared toward their decision on the
project, requiring the lead agency to anticipate and analyze
alternatives that the lead agency has determined to be infeasible for
each of these responsible agencies would be unworkable,
prohibitively expensive, and burdensome.
      While CEQA serves the important function of protecting
California's environment, navigating the statutory scheme has become
increasingly complex. The Opinion incorrectly contributes to that
complexity, in contravention ofCEQA's language and purpose.
Accordingly, this Court should grant review to settle these important
questions.
                                   -8-
                        IV.      BACKGROUND

      The City and The Regents adopt the Court of Appeal's
recitation of the factual and procedural background (Opn. 3-6), with
the following additions and clarifications.

A.    Statement of Facts

      The Project in this case is an application by the City, the "lead
agency" with discretionary authority over Project implementation and
the obligation to prepare an EIR, to LAFCO, the "responsible agency"
with discretionary authority over Project implementation, to amend
the City's sphere of influence (SOl) to include property that The
Regents owns, so the City can provide water and sewer services to
that property (the "Project").
      On September 21, 2006, The Regents approved its Long Range
Development Plan (LRDP) and certified the accompanying
Environmental Impact Report (EIR). (Admin. Record (AR) 578,
3208, 8245) The LRDP serves as a guide for the comprehensive
physical development of the University of California, Santa Cruz
(UCSC) campus and projected campus population growth through the
academic year 2020-2021. (AR 3205) The LRDP envisions
3,175,000 gross square feet of new development for the entire
campus, which is considered to be the amount necessary to support
enrollment growth that The Regents approved. (AR 617; Cal.
Postsecondary Education Com., Update on Space and Utilization
Policies in Higher Education (Sept. 2004), p. 2) UCSC currently




                                   - 9-
receives water services from the City through five connections. (AR
1069)
        Before approving the LRDP, The Regents considered a number
of alternatives in the LRDP EIR. For example, the LRDP EIR
analyzed "Alternative 3," a southerly campus expansion in place of
North Campus growth as a potentially feasible alternative. (AR 3962-
3966 ["Southerly Expansion Alternative"]) The Southerly Expansion
Alternative could accommodate the same population and building
space as anticipated in the LRDP, but would direct future
development to the central, south-central, and southeastern portions of
the campus within the City's existing water service boundary as infill
and expansion of already-developed areas. (AR 3962The Regents
determined, however, that this alternative would conflict with the
campus's planning principles and guidelines. (AR 3965) That
alternative would also result in new and more severe impacts to
aesthetics, biological resources, cultural resources, and geology, soils
and seismicity. (AR 3962-3965)
        The LRDP also considered but rejected from further
consideration an "Option D," which would shift proposed North
Campus development to the existing core of the campus as infill and
increase density development. (AR 3944) The Regents rejected this
option, too, however, because of a lack of sufficient infill space within
the core to accommodate future growth. (AR 3944)
        The LRDP EIR drew two CEQA lawsuits from the City and
County of Santa Cruz and several individuals. The petitioners in
those lawsuits initially prevailed on their claims relating to the
adequacy of the EIR's analysis of water supply and housing impacts
                                  - 10-
and traffic mitigation. To resolve these legal challenges, the parties to
the LRDP litigation entered into an extensive mediation process
following the Santa Cruz Superior Court's initial ruling. This
produced a "Comprehensive Settlement Agreement" (CSA) that was
executed in August 2008. (AR 11120-11151) The CSA became the
global settlement agreement among the parties, which embodied an
important set of commitments by them, and was entered as the Court's
finaljudgment. (AR30, 11117-11118,1250, 1298)
      Under the CSA, The Regents would apply for extraterritorial
services to serve LRDP growth on condition that the City apply for
the Sphere of Influence (SOl) amendment and LAFCO approve it.
(AR 1069-1070) The CSA further specified that ifLAFCO approved
those applications, UCSC would increase on-campus housing by
accommodating 67 percent of student enrollment above the 15,000-
student level, by building housing on-campus. (AR 1066, 1199)
      With regard to urban services, the City agreed that if it were to
provide water to North Campus, it would provide the amount of water
The Regents requested for LRDP growth, subject to LAFCO's
approval. Specifically, Section 2.7 of the CSA states that the "City
will continue to provide water service to the Campus ... and UCSC
may use the water to support development implementing the 2005
LRDP, including the development of housing in the North Campus[.]"
(AR 1069) Section 2.8 states that "UCSC will apply to LAFCO for
extraterritorial water and sewer services (for the development of
3,17 5,000 gross square feet of additional building space under the
2005 LRDP ... ) from the City of Santa Cruz on the following
conditions: .... " (AR 1069-1070) One such "condition" is that the
                                 - 11 -
City's SOl is amended to include the areas designated in the 2005
LRDP. (CSA, section 2.8(b); AR 1070) Because "the City is the sole
provider of urban services to the existed developed UCSC campus,"
the University sought an amount of water from the City that would be
needed to serve the planned growth. (AR 611, 756)
      The City subsequently prepared the EIR for the Project, crafting
the objectives and, by extension, the alternatives, to reflect the
confined scope of the Project. The City invited LAFCO's input on the
scope of the EIR (AR 790-797), and LAFCO responded with a request
for analysis of the potential annexation of existing residence halls,
consideration of mitigation for water supply impacts during droughts
and shifting responsibility for maintenance of a specific road, and
analysis of impacts on forest land. (AR 812-814) Notably, at no time
during the scoping process did LAFCO or anyone else request
analysis of the type of limited-water alternative the Court of Appeal
has required. (See, generally, AR 790-856)
      The City considered, but rejected as infeasible, the Southerly
Expansion Alternative and Alternative D analyzed in the earlier
LRDP EIR. The City also considered but rejected the following
alternatives: Revised Project to Provide Alternative Sewage Disposal
Systems, Develop On-Campus Water Supplies, and Redirect Student
Enrollment to Other Campuses or Construct New Campuses. (AR
756-760) For further analysis in the EIR, the City analyzed the No
Project Alternative, Modified Sphere of Influence Alternative, and
Annexation Instead of Extraterritorial Services Alternative. (AR 97-
100, 760-763) LAFCO commented on the Draft EIR and requested an
analysis of the one alternative that would annex the North Campus to
                                  - 12-
the City, but again, never requested analysis of a limited water
alternative. (AR 136) In response, the City's Final EIR analyzed the
annexation alternative and noted that that alternative would not reduce
any Project impacts. (AR 140) Other commenters on the Draft EIR
suggested a limited water alternative, but the City explained in its
responses to those comments why it determined such alternative was
infeasible. (See, e.g., AR 116, 230, 243-244)

B.     Procedural History

      HAWC challenged the City's EIR, alleging that it failed to
comply with CEQA when it authorized the application to LAFCO for
the expansion. The trial court denied the petition and entered
judgment for the City and The Regents.
      The Court of Appeal reversed and directed the trial court to
enter a new judgment granting the petition in part, directing the City
to vacate its certification of the final EIR and approval of the Project.
In its modified opinion, the Court of Appeal concludes that the City's
EIR was inadequate because it failed to discuss a Project alternative
that would have resulted in less City water being provided to The
Regents' property. The Court reasons that the City, as lead agency,
had failed to provide an analysis of the "limited water alternative" that
could have been of benefit to LAFCO, as responsible agency, as well
as to the City and the public generally.
      The Opinion acknowledges the City's conclusion that a limited
water alternative "would simply result in the Regents developing
areas other than North Campus that are already within the City's
water service area ... [and] that "[a]nalyzing [a limited-water]

                                  - 13-
alternative in detail would be a futile exercise because it would not
provide meaningful information to the City decision-makers regarding
whether to approve the Project or an alternative." (Opn. 32-33) The
Opinion rejects that rationale, however, holding that the limited water
alternative was an "unanalyzed theory." (Opn. 34) It then upholds
the City's statement of overriding considerations, however, reasoning
that it "cannot discount" the City's finding that "in the absence of the
project, the Regents might decide to further develop the main campus,
which would cause greater environmental impacts." (Opn. 38) The
Court concludes that this finding "appears to be supported by
evidence in the record." (Ibid.) This inconsistency, in part, was one
basis of the City's and The Regents' unsuccessful petition for
rehearing.

       V.      THIS COURT SHOULD GRANT REVIEW

A.    Review Is Warranted To Clarify The Roles Of Lead And
      Responsible Agencies Under CEQA

      California has numerous overlapping and complex regulatory
schemes applicable to development. These schemes are implemented
by different local, regional and state agencies. Given this complexity
and the potential for development projects to be caught in an endless
array of regulation, CEQA designates "lead agencies" and
"responsible agencies" for each project and assigns distinct roles to
each. (See§§ 21067, 21069.)
      To provide certainty and finality to CEQA documents, CEQA
provides that responsible agencies are bound by certain decisions of
lead agencies, and sets forth detailed procedures for responsible

                                 - 14-
agencies to participate in the lead agency's process. (See generally
§ 21080.1; Guidelines,§§ 15050, 15082, subd. (b), 15086, subds. (a),
(c), (d), 15096.) The Opinion nullifies this statutory scheme,
however. It will have troubling implications for lead agencies that
attempt, in good faith, to comply with CEQA, and will make the
environmental review process more cumbersome and complicated.

      1.     The Roles Of The Lead Agency And Responsible
             Agencies Under CEQA

      CEQA defines a "lead agency" as the public agency "which has
the principal responsibility for carrying out and approving a project
which may have a significant effect upon the environment."
(§ 21067.) A "responsible agency" is a public agency "other than the
lead agency which has responsibility for carrying out or approving a
project." (§ 21 069.) The Guidelines contain detailed provisions for
determining which agency will be the lead agency when more than
one public agency will approve a project. (Guidelines,§§ 15051-
15053.)
      Once the lead agency has been determined, responsible
agencies may participate in the environmental review process and
ensure the EIR is sufficient for their purposes. The Guidelines specify
procedures for how that occurs. Most importantly for this case,
responsible agencies receive copies of a lead agency's "Notice of
Preparation" (NOP), which asks them what information they need to
see in the lead agency's EIR so that, when the responsible agencies
make their own decisions on a proposed project, the EIR includes
sufficient information for them. (Guidelines, § 15082, and (App. 1.)

                                 - 15-
Responsible agencies must respond to the NOP and attend meetings
called by the lead agency, and provide comments on the lead agency's
draft EIR. (Guidelines,§§ 15082, subds. (b) (c), 15096, subds. (b),
(c), (d).) The required dialogue between a lead agency and a
responsible agency gives the latter ample opportunity to influence or
voice complaints about, for example, the lead agency's formulation of
project objectives or the range of alternatives.
        If the responsible agency believes the lead agency's final EIR is
inadequate for the responsible agency's use, the responsible agency
must:
              (1) Take the issue to court within 30 days after the
        lead agency files a notice of determination;
              (2) Be deemed to have waived any objection to the
        adequacy of the EIR or negative declaration;
              (3) Prepare a subsequent EIR if permissible under
        Section 15162; or
              (4) Assume the lead agency role as provided in
        Section 15052(a)(3).
(Guidelines, § 15096, subd. (e).)
        Importantly, if someone other than a responsible agency files an
action challenging the EIR, the responsible agency must assume that
the EIR complies with CEQA. (§ 21167.3, subds. (a), (b); Guidelines,
§ 15 23 3; City ofRedding v. Shasta County Local Agency Formation
Commission (1989) 209 Cal.App.3d 1169, 1180-1181.)
        If in such an action an injunction or stay is issued prohibiting
the project from being carried out or approved pending final
determination of the issue of compliance with CEQA, the responsible
agencies "shall assume that the environmental impact report or the
                                    - 16-
negative declaration for the project does comply with the provisions
of this division and shall issue a conditional approval or disapproval of
such project .... " (§ 21167.3, subd. (a) [italics added].) Similarly, if
no injunction or stay is issued, responsible agencies must make the
same "assumption," and "shall approve or disapprove the project
according to the timetable for agency action." (§ 21167.3, subd. (b).)
That approval "shall constitute permission to proceed with the project
at the applicant's risk pending final determination of such action or
proceeding." (Ibid.)
      In short, both subdivisions of section 21167.3 require the
responsible agency to assume that the environmental document is
valid. They differ only in whether approval of the project is
conditional.
      Thus, City ofRedding held that these provisions prohibited a
responsible agency from rejecting the lead agency's negative
declaration and requiring an EIR. (City ofRedding, supra, 209
Cal.App.3d at p. 1178.) The Court explained the Legislature intended
in section 21167.3 to "expedite CEQA review where a lawsuit
contesting CEQA documentation is pending by designating one forum
for resolution of claims of unlawful documentation and by requiring
project review to proceed while the claims are resolved. That forum
is the court." (!d. at p. 1181.) The Court rejected the petitioner's
argument that both the responsible agency and the court could
determine the adequacy of a negative declaration, since "[s]uch a dual
determination would cause confusion and provoke additional time-
consuming litigation." (/d.)


                                  - 17-
      CEQA thus prescribes a detailed statutory scheme that manages
the roles of lead and responsible agencies and that guards against
duplicative and time-consuming proceedings. As discussed below,
the Opinion here upsets this carefully crafted regulatory process for
those agencies.

      2.     The Opinion Confuses The Roles Of The Lead And
             Responsible Agencies

      The Opinion requires the City, as the lead agency, to prepare an
EIR for LAFCO, the responsible agency, and include in that EIR
information that LAFCO, despite repeated opportunities, never
requested.
      The City was constrained by a settlement agreement (the CSA)
in setting its project objectives and alternatives even though LAFCO
was not under the same constraints. Under the CSA, the City retained
discretion to decide whether or not to request that LAFCO amend the
City's SOl but lacked discretion over the amount of water it could
apply for in the SOl application to serve LRDP development. If the
City elected to pursue an SOl amendment from LAFCO, the City was
obligated to provide the full amount of water for the North Campus if
LAFCO approved the application. As noted, section 2.8 of the CSA
spells out this agreement. (AR 1069-1 070) Thus, the CSA leaves the
City no discretion to apply for half(or some reduced amount) ofthe
water UCSC requested.
      As noted, LAFCO was invited to comment on both the scope of
the draft EIR under preparation and its contents after publication.
While LAFCO asked for further analysis of some aspects of the


                                 - 18-
project and a consideration of additional mitigation, at no time did it
ever request analysis of a "limited water" alternative. (AR 136, 812-
814)
       The Opinion upholds the City's description of the project and
the project objectives as supported by substantial evidence. (Opn. 24-
25) The Opinion goes on, however, to hold that, even though the City
had no discretion to consider a "limited water" alternative, the City
was required to include and analyze such an alternative in its EIR for
LAFCO's consideration. (Opn. 26, 31) The Court reaches this
conclusion even though LAFCO, as a responsible agency, participated
in the City's environmental review process and never asked for such
an alternative.
       The Opinion upholds the description of the Project in the Draft
EIR as "the proposed City of Santa Cruz Sphere of Influence
amendment request to [LAFCO] to amend [the City's SOl] to include
[North Campus] for the purpose of providing extraterritorial water and
sewer services." (Opn. 21) The Opinion states that "[t]his accurately
describes the discretionary decision that was before the City." (Ibid.)
The Opinion goes on to hold, however, that "while the City's decision
was whether to propose an SOl amendment, the 'whole' of the action
included the Regents' request for extraterritorial services and
LAFCO's decision on both the proposal and the request. Thus, the
EIR was required to consider all of these actions." (Ibid.)
       The Opinion then states that although The Regents and the City
"acknowledge[d]" that the EIR needed to give both City and LAFCO
"decision makers" "information about the environmental
consequences of the decisions that they would be making with regard
                                 - 19-
to the whole project," they claimed that LAFCO "forfeited" any
"inadequacies in the ElR with regard to the information necessary for
LAFCO to make its decisions" because LAFCO "did not bring them
to the City's attention during the ElR process." (Opn. 22) The
Opinion rejects the City's and The Regents' reliance on CEQA
Guidelines section 15096, subdivision (e), which concerns the duties
of a "responsible agency," reasoning that "[i]fthis were an action by
LAFCO challenging the City's ElR, CEQA Guidelines section 15096
might be relevant, but this is not such an action. This is an action by
citizens challenging the City's ElR." (Opn. 23)
      According to the Court, that Guideline "does not excuse a lead
agency's failure to prepare an ElR that complies with CEQA," since
an ElR's purpose 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 such a project might be minimized; and to
indicate alternatives to such a project."' (Opn. 23 [quoting§ 21061,
italics the Court's].) The Court continues, "[t]he fact that LAFCO did
not request revisions to the ElR did not excuse the City from
complying with CEQA by providing all relevant information to 'the
public in general' about the project." (Opn. 23) "To summarize," the
Court states, "the whole of the project included not only the City's
decision whether to propose an SOl amendment, but also the Regents'
application for extraterritorial services, and LAFCO's decision
whether to approve, deny, or approve with conditions the proposed
SOl amendment and the Regents' application." (Jd.)


                                 -20-
       While the Opinion upholds the EIR's description of the project
objectives, it goes on to find the EIR's analysis of alternatives
inadequate because it failed to analyze a "limited water" alternative.
(Opn. 25, 29-31) Under the facts here, the City could not approve a
"limited water" alternative, but LAFCO could. Accordingly, the
Court holds that the City's EIR violated CEQA for failure to discuss a
"limited water" alternative for LAFCO's use.
       Most of the Court of Appeal's reasoning would make sense if,
in response to the City's NOP, LAFCO had requested the inclusion of
a limited water alternative and the City had willfully refused to oblige.
Under such a set of facts, LAFCO would have conveyed to the City
what LAFCO considered to be its needs for purposes of making its
own decision with respect to the project. Even without such input,
however, the Court of Appeal has essentially required the City to
disregard LAFCO's silence on the issue of alternatives and to include,
solely for LAFCO's purported benefit, an alternative that was
infeasible from City's and The Regents' standpoint. In short, the
Opinion essentially requires the City to have been clairvoyant about
what a reviewing court might determine LAFCO should have
requested. Although the facts of this case may seem straightforward,
the consequences of the Court of Appeal's approach become evident
when one envisions a more complex project with a vast array of
responsible agencies, all of whom were silent during scoping and the
draft EIR comment period regarding the need for additional
alternatives.
      CEQA does not require such clairvoyance. In fact, it provides
specific processes for responsible agencies to follow in providing
                                  - 21 -
input to lead agencies on the content ofEIRs. Section 21081.6,
subdivision (c), for example, requires responsible agencies to give
lead agencies input on performance standards to be included in
mitigation measures that would be implemented by the responsible
agency. If CEQA expressly requires such input for mitigation
measures under consideration, surely a responsible agency has a
similar duty to make known its preferences for an alternatives
analysis.
       CEQA requires a lead agency to prepare an EIR for both its
own purpose and the purpose of any responsible agencies. But those
responsible agencies must speak for themselves, and CEQA gives
them multiple opportunities to do so. Here, the City analyzed the
consequences of its decision to request amendment of its SOl, which,
if approved, would allow for the provision of a previously agreed
amount of water to the North Campus. Notably, LAFCO participated
in the process and offered no significant criticism. (AR 135-138, 812-
814)
       The fundamental problem with the Opinion is therefore that it
finds the City's EIR inadequate for LAFCO's purposes even though,
in failing to request the analysis the Court believes it needed and then
failing to challenge the EIR in court, LAFCO was required to assume
that the EIR complies with CEQA. LAFCO had opportunities to
complain about the project objectives and how they shaped the
selection of alternatives, but tellingly, did not. (See Gentry, supra, 36
Cal.App.4th at p. 1380 ["[t]his lack of comment, like Sherlock
Holmes's 'dog in the night-time' which tellingly failed to bark (2


                                  -22-
Doyle, Silver Blaze, in The Annotated Sherlock Holmes [Baring-
Gould ed. 1967], pp. 277, 280), was in itself evidence."].)
      Instead, HAWC took up LAFCO's cause, despite LAFCO's
apparent contentment with the project objectives. The Opinion sets
up a scenario in which CEQA Guidelines section 15096, subdivision
(e) would bar LAFCO from challenging the City's EIR but permit the
public to step into LAFCO's shoes and make the very argument that
LAFCO never made during the City's administrative process and may
not make in court.
      The Opinion has troubling implications for lead agencies under
CEQA. Under the Opinion, a lead agency will now no longer be able
to treat a responsible agency's silence in scoping comments on the
subject of alternatives as indicating a lack of interest on the subject.
Instead, a lead agency faced with such silence will have to put itself in
the role of every responsible agency and attempt to anticipate the
information that each such agency should have requested (as later
determined by a court) be included in the EIR.
      This is a troubling consequence for an additional reason: The
lead agency has no expertise or insight into what the responsible
agency might need or want, particularly where the responsible agency
itself does not anticipate that information. The required consultation
process between lead and responsible agencies will not provide any
certainty for the lead agency over the scope of its own document.
      Moreover, as noted, there can be numerous responsible
agencies for one project. Cities and counties often have some
approval authority over the same project, with LAFCOs regulating
any jurisdictional boundaries. And there are many potential state
                                  -23-
responsible agencies with the authority to issue permits (e.g., Dept. of
Fish and Wildlife, Regional Water Quality Control Boards, and Air
Pollution Control Districts). To require a lead agency, in the face of
silence from such agencies during scoping, to anticipate and analyze
what the lead agency has determined to be infeasible alternatives for
each of these responsible agencies is unworkable.
         Under the Opinion, a lead agency will be unable to rely on the
responsible agencies' participation in the process, opening up the
CEQA document to attack, in contravention of what CEQA intended.
Even though a responsible agency's failure, after such silence during a
lead agency's CEQA process, to challenge the environmental
document means that the responsible agency must assume that
document is valid and proceed with its approval process(§ 21167.3,
subds. (a) & (b)), the Opinion allows petitioners and courts to step
into that agency's shoes even though the responsible agency had no
complaints with the lead agency's document. This contradicts section
21167.3 and will cause the CEQA process for projects with multiple
responsible agency approvals to become unduly complicated and
time-consuming. The Court should therefore grant review of this
ISSUe.




                                   -24-
B.     This Court Should Grant Review To Clarify That When
       Substantial Evidence Supports A Lead Agency's
       Determination That Alternatives Are Infeasible And
       Therefore Need Not Be Analyzed in the EIR, The Lead
       Agency Need Not Analyze Those Alternatives For A
       Responsible Agency

       The Opinion also conflicts with CEQA's substantive mandate
that agencies must review and consider potentially feasible
alternatives to the project under consideration. CEQA provides that
public agencies cannot approve projects as proposed if feasible
alternatives exist that can substantially lessen the significant
environmental impacts of projects. But CEQA also gives the public
agency discretion to determine that alternatives are not "feasible,"
taking into account economic, environmental, social and technological
factors.
       The Opinion upsets this core function of CEQA, however. It
finds that substantial evidence supports the City's own project
objectives and the City's finding that the limited water alternative
would cause greater environmental impacts than the Project. This
should have been sufficient for the City to reject the limited water
alternative as infeasible and not analyze that alternative in the EIR.
But the Opinion also holds that the City's rejection of the limited
water alternative for analysis in the EIR lacked substantial evidence
support because LAFCO could approve a limited water alternative.
This double standard for determining the infeasibility of alternatives
violates CEQA, conflicts with case law, and places lead agencies in an
untenable position.



                                  -25-
       1.     CEQA Requires An Analysis Of Only Potentially
              Feasible Alternatives

      Under CEQA, "the core of an EIR" is the discussion of
mitigation measures and alternatives to a project. (Citizens for Goleta
Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 564 ["Goleta
If'].) "CEQA requires that an EIR, in addition to analyzing the
environmental effects of a proposed project, also consider and analyze
project alternatives that would reduce adverse environmental
impacts." (In re Bay-Delta Programmatic Environmental Impact
Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1163.)
Guidelines section 15126.6, subdivision (a) provides that an EIR
"shall describe a range of reasonable alternatives to the project, or to
the location of the project, which would feasibly attain most of the
basic objectives of the project but would avoid or substantially lessen
any of the significant effects of the project, and evaluate the
comparative merits of the alternatives." (California Native Plant
Society v. City ofSanta Cruz (2009) 177 Cal.App.4th 957, 980
["CNPS''].)
      "In determining the nature and scope of alternatives to be
examined in an EIR, the Legislature has decreed that local agencies
shall be guided by the doctrine of 'feasibility."' (CNPS supra, 177
Cal.App.4th at p. 981, citing Goleta II, supra, 52 Cal.3d at p. 565.)
"An EIR need not consider ... alternatives that are infeasible.
[Citation omitted.] As statutorily defined, 'Feasible' means capable
of being accomplished in a successful manner within a reasonable
period of time, taking into account economic, environmental, social,
and technological factors." (CNPS, supra, 177 Cal.App.4th at p. 981,

                                  -26-
citing§ 21061.1; see also Guidelines,§ 15364 [same definition but
with addition of "legal" factors].)
       Under CEQA, "a public agency is not required to favor
environmental protection over other considerations, but it must
disclose and carefully consider the environmental consequences of its
actions, mitigate adverse environmental effects if feasible, explain the
reasons for its actions, and afford the public and other affected
agencies an opportunity to participate meaningfully in the
environmental review process." (CNPS, supra, 177 Cal.App.4th at p.
982, citation omitted.) "Where an EIR has identified significant
environmental effects that have not been mitigated or avoided, the
agency may not approve the project unless it first finds that '[s]pecific
economic, legal, social, technological, or other considerations ... make
infeasible the mitigation measures or alternatives identified in the
environmental impact report."' (Ibid., citing§ 21081, subd. (a)(3);
Guidelines,§ 15091, subd. (a)(3).)
       Before preparing an EIR for any project, a lead agency may
find that a particular alternative to the project that it initially
considered is "infeasible." (CEQA Guidelines,§ 15126.6, subd.
(c).) An agency has the discretion to select alternatives based on its
determination of whether those alternatives could meet "most" of the
basic project objectives and avoid or substantially lessen one or more
significant impacts. (Guidelines,§ 15126.6, subd. (a); CNPS, supra,
177 Cal.App.4th at p. 991.) However, an EIR need not consider
infeasible alternatives. (In re Bay-Delta, supra, 43 Ca1.4th at p. 1163;
§ 21061.1.) To find such an alternative "infeasible" for this purpose,
the lead agency need only "briefly explain the reasons underlying"
                                    -27-
it. (Guidelines,§ 15126.6, subd. (c); see CNPS, supra, 177
Cal.App.4th at p. 981.) A court reviews that finding for substantial
evidence. (In re Bay-Delta, supra, 43 Cal.4th at p. 1167.)
      When substantial evidence supports a lead agency's selection of
alternatives, a court is required to uphold the selection unless the
range of alternatives is "manifestly unreasonable." (Federation of
Hillside & Canyon Assns. v. City ofLos Angeles (2000)
83 Cal.App.4th 1252, 1265; CNPS, supra, 177 Cal.App.4th at p. 988.)

      2.     The Opinion Requires A Lead Agency To Analyze,
             For A Responsible Agency's Purposes, An Alternative
             That The Lead Agency Properly Determined Was
             Infeasible

      The Opinion here holds that the City's EIR violated CEQA for
failure to analyze a limited water alternative. The Court ultimately
accepts the City's project objectives as valid. Those objectives
included the City's decision to apply to LAFCO for the SOl
amendment. But the Court rejects the City's determinations that those
objectives would not be met by a limited water alternative and that
that alternative was infeasible and should not be carried forward for
full analysis in the EIR. In doing so, however, the Court dismisses
important record evidence that the City cited in support of its
determination. That evidence was that the alternative would not
provide greater environmental benefits than the Project.
      The Opinion dismisses the City's substantial evidence that
showed the infeasibility of a limited-water alternative. (Opn. 30) In
rejecting that alternative, the City could reasonably omit that
alternative from the EIR because it would not meet project objectives.

                                  -28-
After all, the City had no jurisdiction to limit UCSC's campus
development and the alternative would not avoid significant water
supply impacts. (See AR 337 [alternative that contemplates no
campus growth is not feasible because the City and LAFCO do not
have jurisdiction over the University], 758 [rejection of alternative
that would relocate growth to Main Campus], 3963-3966 [LRDP EIR
conclusion that shifting development away from North Campus would
result in new and more severe environmental impacts and would not
change water supply impacts]; Opn. 29 [acknowledging that LAFCO
cannot directly regulate University growth on its campus])
      The Opinion improperly characterizes the City's position
regarding the ineffectiveness of a limited water alternative as an
"unanalyzed theory." (Opn. 31) That characterization misconstrues
the City's obligation under the CSA to provide a certain amount of
water for LRDP growth and accorded little weight to the earlier events
(and litigation) that had shaped the Project's objectives and
alternatives. The Opinion's summary dismissal of the City's reasons
for the infeasibility of the alternative also ignores evidence elsewhere
in the record that supports that determination. (Guidelines,§ 15126.6,
subd. (c) ["[a]dditional information explaining the choice of
alternatives may be included in the administrative record"]; see, e.g.,
AR 116 [explaining that the CSA already provides the necessary
flexibility to react to water shortages], 243-44 [same].) Given both
the CSA's constraints on the City and the jurisdictional limits on the
City and LAFCO to control UCSC growth, a potentially feasible
limited-water alternative was simply nonexistent. The EIR was
therefore not inadequate for failing to consider that alternative.
                                  -29-
       The City's position, moreover, was supported by the Project's
EIR and the LRDP EIR, the latter of which was incorporated by
reference. (AR 675, 758) Evidence of infeasibility need not be solely
found in an EIR and can·be supported by the whole of the record.
(Goleta II, supra, 52 Cal. 3d at p. 569; CNPS, supra, 177 Cal.App.4th
at p. 1103; CEQA Guidelines,§ 15126.6, subd. (c).) As the record
makes clear, nothing prohibited UCSC from shifting planned North
Campus development to other parts of the campus, within the City's
boundaries, which the City may be required to serve with the same
amount of additional water under existing service connections.
       Among its reasons to justify Project approval, the City stated
that denial of the SOl amendment could foreseeably result in UCSC
pursuing other options to develop the North Campus area or cause
UCSC to intensify development in the other existing parts of the
campus. (AR 30) Citing the conclusions in the LRDP EIR, the City
determined that these options "could result in greater environmental
impacts than those identified in the 2005 LRDP EIR." (AR 30) The
Court of Appeal upheld the City's reliance on the LRDP EIR with
respect to the City's statement of overriding considerations, stating
that it "cannot discount this reason, as it appears to be supported by
evidence in the record." (Opn. 35)
      However, this reason was the very reason the City gave for
rejecting the limited-water alternative as infeasible. (AR 30, 758,
3963-3966) The Opinion nevertheless concludes that that decision
was not supported by substantial evidence. (Opn. 30-31) The Court
states that by failing to discuss feasible alternatives, the EIR failed to


                                   -30-
satisfy the informational purposes of CEQA, "which included proving
LAFCO with relevant information." (Opn. 31)
      The Opinion therefore creates a scenario in which it finds that
substantial evidence supports the City's project objectives, along with
its determination that a limited water alternative would have greater
environmental impacts than the Project, but finds that that same
evidence is not substantial enough to support the determination that
the alternative is infeasible. The only justification the Court could
have had for this double standard is that, although the City was
constrained in its project objectives to consider only providing the full
amount of water, LAFCO was not so constrained. The end result of
this holding, however, is that, in essence, the Court of Appeal has
required the City to anticipate and analyze an alternative for LAFCO's
purposes-even though LAFCO never requested such an
alternative-that the City has supporting evidence to determine was
infeasible for its own purposes.
      In this respect, the Opinion conflicts with Save San Francisco
Bay Association, supra, 10 Cal.App.4th 908. There, the City and
County of San Francisco and the San Francisco Bay Conservation and
Development Commission (BCDC) approved the construction of an
aquarium at Pier 39 in the Fisherman's Wharf area on the San
Francisco Bay. The City was the lead agency on the project under
CEQA. BCDC, in its capacity as responsible agency, approved a
permit authorizing the addition of"fill" to accommodate the proposed
aquarium. (!d. at p. 918.)
      The petitioner challenged the City's alternatives analysis under
CEQA, on the grounds that it failed to examine a "non-fill"
                                   - 31 -
alternative, which frustrated BCDC's ability to carry out its mandate
to project the Bay from additional fill. (!d. at p. 921.) The Court of
Appeal rejected this argument. After first stating that the City, as the
lead agency under CEQA, "had a duty to produce a comprehensive
alternatives analysis that could be relied upon by BCDC," the Court
held that the City had complied with this requirement because the
objectives severely limited the number of feasible alternatives. (!d. at
p. 922.)
       The Court found that the City "did not default in its
responsibility to the public or to BCDC to consider a full range of
alternatives." (!d. at p. 922.) Noting that Goleta II requires that an
EIR focus only on alternatives that can "feasibly" attain a project's
basic objectives and that "CEQA does not require the examination of
alternatives that are so speculative, contrary to law, or economically
catastrophic as to exceed the realm of feasibility," the Court stated
that "the requirements for the aquarium project were very specific and
limited in scope (waterfront access, proven attendance base,
transportation and parking), which in tum severely limited the
'feasible' alternatives." (Ibid.) The Court went on to explain that the
EIR' s discussion of alternatives did not analyze an "alternative
location on the waterfront that would avoid placing fill in the Bay,"
but the "lack of specificity in this objection" was "telling" because
"we are asked to presume that a feasible alternative site existed
somewhere along the San Francisco waterfront which did not require
fill, and that the City did not make a sufficient attempt to find it or,
worse yet, found it but then ignored it. The record demonstrates
otherwise." (Ibid.)
                                   -32-
       Similarly, here, the objectives of the Project were specific and
limited in scope. The Court of Appeal upholds the final EIR's
description of the project objectives, but then finds that the EIR was
nevertheless required to consider a limited-water alternative for
LAFCO's purposes. As noted, however, the City determined that a
limited-water alternative was not a feasible one given the project
objectives, and substantial record evidence supports this
determination.
       In Save San Francisco Bay Association, the City's EIR was not
required to discuss a "non-fill" alternative that would support a
responsible agency's mandate to protect the Bay from additional fill.
Similarly, here, the City was not required to analyze a limited-water
alternative for LAFCO's purposes given the City's finding that such
an alternative was infeasible in light of the project objectives and
particularly in light ofLAFCO's silence on the issue.
       The Opinion thus creates a conflict with Save San Francisco
Bay Association. Lead agencies preparing EIRs will be faced with
inconsistent rules as to whether or not they must analyze infeasible
alternatives that may be of interest to responsible agencies despite
there being no evidence the responsible agencies even want the
alternative considered. This will lead to uncertainty and confusion in
the environmental review process. The Court should grant review to
clarify this issue.

                        VI.    CONCLUSION

       The Court of Appeal's Opinion creates confusion and
inconsistency in the principles applicable to agencies faced with the
                                  - 33-
task of preparing EIRs. It also conflicts with existing precedent. For
these reasons, this Court should grant review.


DATED: April2, 2013.             Respectfully submitted,

                                 REMY MOOSE MANLEY, LLP
                                 OFFICE OF THE GENERAL
                                 COUNSEL, THE REGENTS OF
                                 THE UNIVERSITY OF
                                 CALIFORNIA
                                 MEYERS NAVE
                                 REED SMITH LLP


                                 By:   8~ 1 AA U, 1J~ {pi)
                                          Sabrina V. Teller
                                 Attorneys for Cicy of Santa Cruz, City
                                 Council of the City of Santa Cruz, and
                                 The Regents of the University of
                                 California




                  WORD COUNT CERTIFICATE

      This Petition contains 8,3 74 words (including footnotes, but
excluding cover, tables, the signature block, and this certificate). In
so stating, I have relied on the word count of Microsoft Office Word
2010, the computer program used to prepare the brief.

      Executed on April 2, 2013, at San Francisco, California.




                                  -34-

								
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