Backcountry Against Dumps v. San Diego County Bd. of Supervisors CA4/1 (2015) · DecisionDepot
Backcountry Against Dumps v. San Diego County Bd. of Supervisors CA4/1
California Court of Appeal Sep 16, 2015 No. D066135Unpublished
Filed 9/16/15 Backcountry Against Dumps v. San Diego County Bd. of Supervisors CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BACKCOUNTRY AGAINST DUMPS et al., D066135
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-20013-00052926- CU-TT-CTL) SAN DIEGO COUNTY BOARD OF SUPERVISORS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed.
Law Offices of Stephan C. Volker, Stephan C. Volker, Alexis E. Kreig,
Stephanie L. Clarke and Jamey M.B. Volker for Plaintiffs and Appellants.
Thomas E. Montgomery, County Counsel, and C. Ellen Pilsecker, Chief Deputy
County Counsel, for Defendant and Respondent.
Backcountry Against Dumps and Donna Tisdale (together Appellants) challenged
the certification by the San Diego County Board of Supervisors (Board) of a final
environmental impact report (FEIR) for the amendment to the County General Plan and
Zoning Ordinance relating to wind turbines (Project), claiming the Board's approval of
the Project violated the California Environmental Quality Act (CEQA) (Pub. Resources
Code, § 21000, et seq.1) in several respects. The superior court disagreed and entered
judgment denying Appellants' petition for writ of mandate and dismissing their complaint
Appellants appeal the judgment, contending the FEIR does not adequately address
and analyze the significant environmental impacts of the Project or consider a reasonable
range of alternatives. In addition, Appellants maintain the Board did not provide an
adequate statement of overriding considerations that was supported by substantial
evidence. We determine none of these contentions has merit. Accordingly, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In support of California's climate change initiatives, the Board, in early 2009,
launched a process to review its existing regulatory framework for wind turbines. To this
end, the Board ultimately approved the Project, described in the FEIR as follows:
"The project is composed of proposed amendments to the County's Zoning Ordinance related to wind turbines and meteorological testing (MET) facilities.[2] The amendments consist of clarifications, deletions, and revisions to provide an updated set of definitions, procedures, and standards for review and permitting of wind turbines and MET facilities. The proposed project includes
1 Statutory references are to the Public Resources Code unless otherwise specified.
2 MET facilities are comprised of temporary testing equipment used to determine whether a particular area has adequate wind to support a commercial wind turbine project. 2
allowing a temporary MET facility that complies with the height designator of the zone without a discretionary permit. The proposed project also includes allowing small wind turbines[3] that meet the definition and specifications of the Zoning Ordinance to be developed without a discretionary permit. Although no land use permits would be required, a Zoning Verification Permit would be required prior to issuance of a building permit to verify that each small wind turbine complies with the definition and specifications of the Zoning Ordinance. Large wind turbines, as defined by the Zoning Ordinance,[4] would continue to be subject to Major Use Permit procedures and requirements and would require a separate project-specific environmental review. Amendments to the Zoning Ordinance related to large wind turbines are proposed to bring development parameters up to date with technological changes that affect design standards of wind turbines, as well as to establish a low frequency C-weighted sound-level limit.
"The proposed project also includes a General Plan Amendment (GPA) intended to accomplish the following: (1) modify the Boulevard chapter of the Mountain Empire Subregional Plan (Boulevard Community Plan) to allow large wind turbine projects through the Major Use Permit process; and (2) allow small wind turbine projects in the Borrego Springs Community Plan, but continue to prohibit large wind turbines in areas where viewsheds would be adversely impacted. The potential environmental effects associated with the GPA are included in the project analyzed in this EIR."
Prior to approving the Project, the Board issued a notice of preparation of the EIR
for the Project on September 9, 2010. The draft environmental impact report (DEIR) was
completed on November 8, 2011. The DEIR described the Project objectives as follows:
3 "Small Wind Turbine: A wind turbine with or without a tower, which has a rated capacity of not more than 50 kilowatts that generates electricity primarily for use on the same lot on which the wind turbine is located."
4 "Large Wind Turbine: An installation consisting of one or more wind turbines in which the sum of the blade swept areas of all turbines is greater than 850 square feet." 3
"1. Facilitate the use of renewable wind energy within the County pursuant to existing and future statewide goals
"2. Maximize the production of energy from renewable wind sources to assist the County in furthering federal goals under Section 211 of the Energy Policy Act of 2005
"3. Reduce the potential for energy shortages and outages by facilitating local energy supply
"4. Streamline and clarify the approval process for the development and operation of small wind turbines
"5. Minimize the potential land use conflicts that may arise through the development of wind turbines
"6. Allow the development of small wind turbines without a discretionary permit
"7. Allow temporary MET facilities that comply with the height designator of the zone to be permitted without a discretionary permit
"8. Update regulations for large wind turbines to be consistent with current wind turbine technology and design."
A revised DEIR was issued in April 2012. Several hearings were held before the
County Planning Commission and the Board regarding the Project and DEIR throughout
2012. In addition, the public was able to comment on the DEIR and proposed Project.
The FEIR was completed in January 2013. It identifies and discusses the Project's
environmental effects. The FEIR also identifies and discusses mitigation measures
designed to address the Project's potential impacts. The FEIR considers proposed
alternatives and rejects certain alternatives as infeasible. It identifies three potentially
feasible alternatives, including the required "[n]o [p]roject" alternative, which it analyzes
and evaluates.
4
The Board placed the Project on its agenda for consideration at its May 8, 2013
regular meeting. Several written comments, including materials from Appellants, arrived
at the County late in the day on May 7, 2013. The Board heard the matter on May 8,
2013 and considered several documents introduced at that meeting. Ultimately, the
Board continued the matter to its May 15, 2013 regular meeting.
On May 15, 2013, the Board certified the FEIR, adopted the related CEQA
findings, and adopted the zoning ordinance and General Plan changes for the Project.
Additionally, the Board adopted "Findings Regarding Significant Effects." The Board
adopted a mitigation monitoring and reporting program and findings that recirculation of
the FEIR was not required. Because the Board found that the benefits of the Project
outweigh the unavoidable environmental effects, it approved a statement of overriding
considerations, which set forth the Project's benefits. The Board filed its notice of
determination on May 15 as well.
Appellants5 subsequently filed a petition for a writ of mandate and complaint for
injunctive relief, challenging the Board's approval of the Project and the legality of the
FEIR. The Board answered the petition and complaint. After the parties briefed the
relevant issues, the matter came for hearing in the superior court. There, the court found
that the Board and FEIR complied with CEQA and the petition and complaint were
without merit. The court entered judgment in favor of the Board, denying the relief
requested by Appellants.
5 The Protect Our Communities Foundation also was a petitioner, but is not a party in this appeal. 5
Appellants timely appealed.
DISCUSSION
I
STANDARD OF REVIEW
Review of the FEIR is governed by section 21168.5. While the basic nature of
review is in ordinary mandamus, CEQA6 is unique in that it requires substantial evidence
in support of certain evidentiary determinations. Under section 21168.5, the court
considers whether there was an abuse of discretion, which is established if the agency has
not proceeded in a manner required by law or if the decision is not supported by
substantial evidence. (§ 21168.5.)
A. Substantial Evidence
Substantial evidence means "enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached." (Guidelines, § 15384,
subd. (a).) When a court determines an agency's decision was supported by substantial
evidence, it grants greater deference to the agency's substantive factual conclusions.
(Laurel Heights Improvement Assn. v. Regents of University of California (1988)
47 Cal.3d 376, 393 (Laurel Heights).)
Courts presume that the agency's decisions are correct, and the challenger bears
the burden of proving the contrary. (State Water Resources Control Board Cases (2006)
6 CEQA is implemented through certain California regulations. (See Cal. Code Regs., tit. 14, § 15000 et seq.; (Guidelines).) 6
136 Cal.App.4th 674, 723.) A court "may not set aside an agency's approval of an EIR
on the ground that an opposite conclusion would have been equally or more reasonable."
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) A court
" 'must resolve reasonable doubts in favor of the administrative finding and decision' "
(Laurel Heights, supra, 47 Cal.3d at p. 393), even though other conclusions might be
reached from the same body of evidence. (Ibid.) " '[A]n appellant challenging an EIR
for insufficient evidence must lay out the evidence favorable to the other side and show
why it is lacking. Failure to do so is fatal.' " (Tracy First v. City of Tracy (2009) 177
Cal.App.4th 912, 934.)
A court's task is not to weigh conflicting evidence and determine who has the
better argument. These questions are left to the discretion of the agency and its
environmental consultants; it is they who decide how best to prepare an EIR to achieve
CEQA's informational purpose. The Board's determinations regarding disputed questions
of fact are entitled to the same deference appellate courts give to the factual findings of
trial courts. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559,
573; Environmental Council of Sacramento v. City of Sacramento (2006) 142
Cal.App.4th 1018, 1042.)
B. Failure to Proceed in a Manner Required by Law
An abuse of discretion may also be established if the agency fails to proceed in a
manner required by CEQA. When an agency fails to include information mandated by
CEQA in the environmental analysis, the agency fails to proceed in a manner required by
law. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
7
(2007) 40 Cal.4th 412, 435 (Vineyard); Sierra Club v. State Bd. of Forestry (1994) 7
Cal.4th 1215, 1236.) However, where the agency includes the relevant information, but
the adequacy of the information is disputed, the question is one of substantial evidence.
(Vineyard, supra, at p. 435; Laurel Heights, supra, 47 Cal.3d at p. 393.)
When determining whether an agency proceeded in a manner required by law, we
do not impose procedural or substantive requirements beyond those explicitly stated in
CEQA and the Guidelines. (See § 21083.1; South Orange County Wastewater Auth. v.
City of Dana Point (2011) 196 Cal.App.4th 1604, 1617.) Such a review requires the
court to consider the record as a whole. Accordingly, if some facts show a failure to
comply, but the record as a whole supports a finding of compliance, courts should find
compliance based on the evidence in the whole record. (See Ebbetts Pass Forest Watch
v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 945, 949-950.)
The same presumptions apply to review under this standard as under the
substantial evidence standard. That is, the EIR is presumed to be legally adequate, and
the party challenging the legal adequacy bears the burden of establishing otherwise.
(State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 723.)
C. Prejudicial Abuse of Discretion
A reviewing court looks not for perfection but for good faith and substantial
compliance. (Western Placer Citizens for an Agricultural & Rural Environment v.
County of Placer (2006) 144 Cal.App.4th 890, 899 [" 'CEQA requires an EIR to reflect a
good faith effort at full disclosure; it does not mandate perfection, nor does it require an
analysis to be exhaustive' " quoting Kings County Farm Bureau v. City of Hanford (1990)
8
221 Cal.App.3d 692, 712].) An error in procedure by itself is not the basis for an adverse
judicial determination. There must be a prejudicial abuse of discretion. "[T]here is no
presumption that error is prejudicial." (§ 21005, subd. (b).)
The Board's decision to approve the Project despite its significant environmental
impact is a discretionary policy decision, entrusted to it by CEQA, which will be upheld
as long as it is based on findings of overriding considerations that are supported by
substantial evidence. (Cherry Valley Pass Acres & Neighbors v. City of Beaumont
(2010) 190 Cal.App.4th 316, 357 (Cherry Valley); see City of Long Beach v. Los Angeles
Unified School Dist. (2009) 176 Cal.App.4th 889, 897 (City of Long Beach ); §§ 21002,
21083.)
II
ANALYSIS
Appellants challenge the judgment on three primary grounds. First, they contend
the FEIR's analysis of the Project's impacts was deficient. Second, Appellants maintain
the Board did not consider a reasonable range of alternatives by dismissing as infeasible
the alternatives of distributed generation policy and increased setbacks. Finally,
Appellants insist the Board failed to provide an adequate statement of overriding
considerations supported by substantial evidence. As we explain below, we determine
none of Appellants' contentions are well taken.
9
A. The FEIR's Consideration of Public Safety, Water Supply, and the Consequences to Bats
1. Turbine Blade Throw and Turbine Collapse
Appellants challenge the FEIR, arguing it did not sufficiently address certain
significant impacts of the Project. Specifically, they assert the FEIR did not address
"significant public safety impacts" caused by turbine blade throw and turbine collapse.
The Board counters that the public safety impacts Appellants raise are not environmental
impacts under CEQA. It also points out that the FEIR addressed potential environmental
hazards that could result from the Project.
Appellants claim the FEIR does not adequately discuss the safety hazards
presented by the possibility of blade throw (the malfunction of a wind turbine separating
from the structure and landing away from the tower) and turbine collapse. Accordingly,
Appellants maintain that the FEIR is inadequate and the judgment must be reversed. We
disagree.
"CEQA requires that an EIR include detailed information concerning, among other
things, the significant environmental effects of the project under consideration. (Pub.
Resources Code, §§ 21100, 21100.1)" (Rialto Citizens for Responsible Growth v. City of
Rialto (2012) 208 Cal.App.4th 899, 923-924 (Rialto).) " 'Significant effect on the
environment' " means a substantial, or potentially substantial, adverse change in the
environment. (§ 21068; see Guidelines, § 15382 [" 'Significant effect on the
environment' means a substantial, or potentially substantial, adverse change in any of the
physical conditions within the area affected by the project including land, air, water,
10
minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance."].)
Here, Appellants have provided no authority or argument explaining how blade throw
and turbine collapse adversely impacts the environment. Instead, Appellants all but
concede blade throw and tower collapse are safety hazards.7 We agree with the Board
that the potential for personal injury caused by an operation accident is a safety concern,
but it is not an environmental impact that must be studied in an EIR. (Cf. Eureka
Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 375-
377.) For this reason, Appellants' argument fails.
In addition, the FEIR contains a report entitled "Permitting Setback Requirements
for Wind Turbines in California" prepared for the California Energy Commission by
California Wind Energy Collaberative. The report states, "The available documentation
shows rotor failure probability in the 1-in-1000 per turbine per year range." Accordingly,
it appears blade throw is exceedingly infrequent. Further, the report reviews a variety of
wind turbine projects and notes "[t]here is no evidence that setbacks were based on
formal analysis of the rotor fragment [blade throw] hazard." Put differently, in deciding
7 The FEIR discusses the potential for wildfires resulting from "turbine malfunction or mechanical failure" and acknowledges that "flaming debris from a turbine fire can ignite vegetation in the surrounding area." The FEIR explains that most modern turbines are equipped with automatic fire detection systems and reiterates that all future large turbine projects will be subject to discretionary review through the major use permit process. Further, the FEIR acknowledges "there is ultimately no guarantee on a project- specific level that mitigation measures would reduce impacts to a level below significant relative to wildfires; therefore, the proposed project may result in significant impacts related to wildland fires." Appellants do not challenge the FEIR's discussion of the possible environmental impact of wildfires, but argue that the FEIR did not sufficiently address the safety hazard of blade throw and tower collapse. 11
the length of the setback needed, there is nothing in the report indicating that any
governmental entity used blade throw as a criteria in establishing the appropriate setback.
And although the report states that planning agencies should use "new rotor fragment
hazard information" to modify or establish wind turbine setbacks, there is no agreed upon
formula or rule. Therefore, there is nothing in the report that supports an argument that a
certain length of setback is required to account for blade throw. As such, we are not
persuaded that the Board did not appropriately consider blade throw when it certified the
FEIR and approved the Project.
Moreover, we are not swayed by Appellants' claim that the Board failed to
adequately respond to public comments regarding safety concerns involving blade throw
and turbine collapse. Some of the "comments" on which Appellants rely are merely
portions of the report "Permitting Setback Requirements for Wind Turbines in
California" as well as a Dutch study entitled "Analysis of Risk-Involved Incidents of
Wind Turbines." Appellants point to nothing in either of these reports that require a
specific setback to account for blade throw or tower collapse.
The other comments cited by Appellants were adequately responded to. In one
comment, Appellants claimed that large wind turbines could diminish property values
and within that context, asserted that setbacks should be determined for each large wind
structure to account for sound levels, shadow flickering, ice shedding, structure failure,
and blade breakage and throw off. In response, the Board emphasized that the comments
raised concerned social and economic effects that need not be consider in an EIR. (See
Guidelines, §§ 15064(e), 15131.) It also reminded Appellants that the Project establishes
12
provisions for permitting large wind turbines in the future under the major use permit
process, which will provide further opportunity to provide comments and testimony
related to environmental or economic impacts. Such a general response is authorized by
CEQA. (See City of Long Beach, supra, 176 Cal.App.4th at p. 901; City of Maywood v.
Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 401.) Further, the
comment concerned large wind turbines, and the Project, in regard to large turbines, was
merely a regulatory amendment. Therefore, a site specific impact for a future large wind
turbine is appropriately analyzed during the review process for the particular project.
(See Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18
Cal.App.4th 729, 747 (Al Larson); Guidelines, § 15146.) For this reason as well, the
Board's response was sufficient.
Finally, the last comment cited by Appellants did not concern blade throw or
tower collapse specifically, but maintenance and safety concerns of wind turbines in
general. The Board correctly noted that the maintenance-related comments did not raise
an environmental issue and that the safety of small and large wind turbines would be
governed by the applicable building code and safety standards for similar structures in the
County. We see nothing inadequate regarding the Board's response.
In summary, we determine that the FEIR was not defective and the Board's
approval of the Project not improper because the FEIR did not consider in greater detail
the safety concerns of tower collapse and blade throw.
13
2. Water Concerns
Appellants next claim that the FEIR did not adequately analyze the Project's
impact on water supplies. Specifically, they assert the FEIR did not properly consider the
impact on the ground water supply caused by both small and large turbines. In addition,
Appellants maintain the FEIR ignores the Project's impact on the imported water supply
as well as cumulative water supply. We determine none of Appellants' contentions have
merit.
a. Ground Water
The FEIR makes the following findings relative to small wind turbines' impact on
ground water supply:
"The proposed project would allow small wind turbines or MET facilities without discretionary review. However, these facilities are not expected to use groundwater for purposes of irrigation, domestic, or commercial demands. In addition, future small wind turbines would not involve operations that would interfere substantially with groundwater recharge, including but not limited to regional water diversion of water to another groundwater basin, or diversion or channelization of a stream course or waterway with impervious layers, such as concrete lining or culverts for substantial distances (e.g., .25 mile). Some projects may use small amounts of ground water for cleaning the equipment, such as wind turbine rotor blades, on the site. The purpose of blade cleaning is to eliminate dust and insect buildup, which otherwise deforms the shape of the airfoil and degrades performance. As illustrated in Table 3.1.2-3, the American Wind Energy Association estimates water consumption for a wind turbine is approximately 0.001 gallons/kilowatt-hour (kWh). These small amounts of water usage project would not substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level. Therefore, impacts to groundwater resources would be less than significant." (Fn. omitted, bold in original.)
14
Here, Appellants claim that the FEIR "erroneously assumes . . . the amount of
water required to maintain small turbines." They then attempt to explain their position by
pointing to the configuration of small turbines, the wind speed of small turbines, and the
conclusion that small turbines produce less power than large turbines. Based on these
arguments, Appellants maintain that the FEIR is incorrect and that the water required to
maintain small turbines will be greater than what is needed for large turbines.
In essence, Appellants attack the data in the FEIR and ask us to reweigh it. This
we cannot do. "A court's task is not to weigh conflicting evidence and determine who has
the better argument. These questions are left to the discretion of the agency and its
environmental consultants; it is they who decide how best to prepare an EIR to achieve
CEQA's informational purpose. The [Board's] determinations regarding disputed
questions of fact are entitled to the same deference appellate courts give to the factual
findings of trial courts." (San Diego Citizenry Group v. County of San Diego (2013) 219
Cal.App.4th 1, 12 (San Diego Citizenry Group); see Laurel Heights, supra, 47 Cal.3d at
p. 393 ["A court's task is not to weigh conflicting evidence and determine who has the
better argument. . . . We have neither the resources nor scientific expertise to engage in
such analysis, even if the statutorily prescribed standard of review permitted us to do
so."].) Here, there is no indication that the data on which the FEIR relies to analyze the
impact of small turbines on ground water supply was flawed, improper, or otherwise
unreliable. Appellants merely conclude that it is unsound and claim the FEIR could not
rely on it. This is not a proper challenge in this court under CEQA. (See San Diego
Citizenry Group, supra, at p. 12; Laurel Heights, supra, at p. 393.)
15
Similarly, we are not persuaded by Appellants' contention that the FEIR's
consideration of large turbines' impact on ground water supply was inadequate under
CEQA. It is important to note that the Project did not approve of any specific number or
placement of large wind turbines. Instead, the FEIR made clear that future proposed
large turbine projects must obtain a discretionary major use permit and comply with the
County Groundwater Ordinance, the Watershed Protection Ordinance, and General Plan
Policy LU-13.2. It also explains that compliance with the Groundwater Ordinance and
the General Plan Policy LU-13.2 requires demonstration of a viable water supply. It
further explains how the County's Groundwater Ordinance protects the water supply from
depletion. The FEIR identifies the likely sources of groundwater for future projects:
"The western portion of the County is mostly supplied with imported water from member
agencies and the San Diego County Water Authority. The remaining portion of the
County is completely dependent on groundwater resources. The County contains three
types of groundwater aquifers: fractured rock, alluvial/sedimentary, and Desert basin
aquifers." This analysis sufficiently addresses the impacts to groundwater supplies and
appropriately defers site-specific analysis to future EIRs. (See San Diego Citizenry,
supra, 219 Cal.App.4th at pp. 22-23.)
Citing Vineyard, supra, 40 Cal.4th 412, and Stanislaus Natural Heritage Project v.
County of Stanislaus (1996) 48 Cal.App.4th 182 (Stanislaus), Appellants argue the FEIR
does not do enough. Their reliance on these two cases is misplaced as neither case
involved a regulatory amendment as the one at issue here.
16
The general plan and zoning ordinance amendments in Vineyard were part of a
project for a 6,000 acre master planned community that included 22,000 residential units,
schools, parks, office, and commercial uses, occupying about 480 acres of land.
(Vineyard, supra, 40 Cal.4th at p. 422.) Similarly, Stanislaus involved a rezone and plan
amendment as part of the approval of a large residential community and resort to be
developed in the project area over 25 years. (Stanislaus, supra, 48 Cal.App.4th at
p. 188.) In both Vineyard and Stanislaus, the specific project details were known, as
were the project locations, which were necessary to identify the sources of water and
analyze their adequacy. (See Vineyard, supra, at pp. 421-422; Stanislaus, supra, at
p. 195.)
The court in Stanislaus observed that deferral of environmental review was not
appropriate under the circumstances of that case because the county there "did
not . . . simply adopt or amend a general plan so as to permit the building of homes and
other facilities. Instead, the county adopted a specific plan calling for the construction of
those facilities and of other particularly described facets of the plan." (Stanislaus, supra,
48 Cal.App.4th at p. 203.) In contrast, the Board here simply amended its zoning
ordinance and general plan in regard to large wind turbines. Also, unlike Vineyard,
supra, 40 Cal.4th 412 and Stanislaus, the areas of San Diego County where large turbine
projects could be located are not limited to a discrete location that could be studied, but
are scattered throughout areas of east San Diego County.
17
As the court in Stanislaus acknowledged, an FEIR for general plan and zoning
amendments need not be as detailed as an EIR for a project allowed under the
amendments. (Stanislaus, supra, 48 Cal.App.4th at p. 203.)
We determine the present case is more analogous to San Diego Citizenry, supra,
219 Cal.App.4th 1. In that case, a similar challenge was made to the County's water
impact analysis in the FEIR for general plan and zoning ordinance amendments regarding
wineries. As here, the amendments in San Diego Citizenry required a discretionary
permit for some projects while others were allowed without a permit. Appellant in that
case also relied on Vineyard, supra, 40 Cal.4th 412 to support its assertion that the
County violated CEQA by not preparing detailed projections about size, location, and
water supply impacts for as-yet unidentified future winery operations. (San Diego
Citizenry, supra, at pp. 22-23.) In rejecting this assertion, we explained: "Vineyard does
not require . . . that the FEIR for a zoning amendment predict the 'total effect on water
demands' in the Project area to adequately address water impacts. A conceptual EIR,
such as one for a general plan amendment . . . to allow proposed development, meets
Vineyard's requirements by identifying the likely source of water for new development,
noting the uncertainties involved, and discussing measures being taken to address the
situation in the foreseeable future." (Id. at pp. 22-23, citing Watsonville Pilots Assn. v.
City of Watsonville (2010) 183 Cal.App.4th 1059, 1092.) For the reasons stated above,
the FEIR in this case meets these standards.
18
b. Cumulative Impact on Ground Water Supply
In addition, Appellants claim the FEIR did not sufficiently analyze the Project's
cumulative impact on groundwater supplies. However, as discussed above, the FEIR
concluded small turbines will not contribute to any cumulative impact because they use
an insignificant amount of water. And, in regard to the Project here, large turbines will
not contribute to a cumulatively significant impact because they will be subject to further
discretionary review, where mitigation will be required, if necessary.
Appellants insist these findings are incorrect because the EIR for a previously
approved large turbine project, the Tule Wind project, found significant cumulative
groundwater impacts. Appellants, however, do not mention that the impact was then
mitigated to a level below significance. Once again, Appellants take issue with the
conclusion that the FEIR reaches and asks us to reweigh the data in the record. As
discussed above, this we cannot do. (See San Diego Citizenry Group, supra, 219
Cal.App.4th at p. 12; Laurel Heights, supra, 47 Cal.3d at p. 393.) Moreover, a detailed
review of the record demonstrates that Appellants' concerns are unfounded.
The Tule Wind project is discussed in a staff response (the Bennett report), which
specifically addresses a report Appellants submitted on the cumulative impacts of "Large-
Scale Energy Projects" (the Ponce report).8 The Bennett report uses the Tule Wind
8 The Ponce report, entitled "Cumulative Impacts of Water Resources of Large- Scale Energy Projects in Boulevard and Surrounding Communities, San Diego County, California," by Victor M. Ponce dated April 30, 2013, was submitted to County staff on the eve of the May 8, 2013 hearing. As the Bennett report observes, the Ponce report contains questionable assertions and conclusions. For example, the magnitude of the 19
project to illustrate how future proposed large turbine projects will be processed. As the
Bennett report explains, the Tule Wind project's estimated water use during construction
triggered the need for a groundwater investigation to determine sources of available water
and resulted in a groundwater monitoring and management plan that limited water usage
and created a threshold at which water consumption would be required to cease. Through
these measures, groundwater impacts that the Tule Wind project FEIR originally
identified as cumulatively significant were mitigated so that the project did not contribute
to a cumulatively significant impact.
The Bennett report concludes that future proposed large turbine projects will
similarly use minimal water except during the construction phase, where high water use
triggers Groundwater Ordinance protections, including "a groundwater investigation that
addresses cumulative impacts to the project's groundwater basin at maximum buildout of
the General Plan." The FEIR's reliance on future environmental impact review is proper
under CEQA because, under the Project, any large wind turbine project will be subject to
additional discretionary review. (See Al Larson, supra, 18 Cal.App.4th at p. 746.)
Al Larson involved a challenge to a cumulative impact analysis in a first tier FEIR
for an amendment to a port master plan, which the court framed as follows: "The FEIR
states that it 'focuses on a general overview of cumulative impacts. These cumulative
impacts and associated mitigation measures will [be] addressed in further detail as part of
estimated long-term impacts is questionable since large turbine projects typically use high amounts of water only during the construction phase. The Ponce report also is critical of County practices regarding water sustainability yet the County evaluates water sustainability in accordance with the practices the Ponce report suggests. 20
the environmental review of specific projects.' The Larson Parties view this as a
concession that the CEQA requirement to discuss cumulative impacts has been ignored."
(Al Larson, supra, 18 Cal.App.4th at p. 746.) In rejecting the challenge, the court stated:
"An FEIR need only conform with the general rule of reason in analyzing the impact of
future projects, and may reasonably leave many specifics to future EIRs. 'CEQA
recognizes that environmental studies in connection with amendments to a general plan
will be, on balance, general.' " (Id. at pp. 746-747, citing Schaeffer Land Trust v. San
Jose City Council (1989) 215 Cal.App.3d 612, 625.)
Here, the FEIR likewise meets CEQA's requirements because it conforms to the
rule of reason; it describes the review process applicable to large turbine project
proposals, explains how cumulative water impacts will be minimized in this process, and
leaves project-specific review to future EIRs.
c. Imported Water Supply
Appellants also maintain that the FEIR "improperly deferred" discussion of the
Project's impacts on imported water supplies. In making this argument, Appellants focus
on a single sentence in the FEIR: "A significant impact would result if sufficient water
supplies are not available to serve the project from existing entitlements and resources, or
if new or expanded entitlements are needed." However, Appellants' contention overlooks
the findings regarding water use in the FEIR.
For example, the FEIR notes, "[s]ome wind turbines may use small amounts of
water for cleaning the equipment on site, such as rotor blades." It explains that future
wind turbines are not likely to use imported water because most of the "wind resources
21
areas" affected by the Project are located outside the jurisdiction of the San Diego County
Water Authority, which distributes imported water. As such, the FEIR determines that
water necessary for small turbines will primarily be provided by groundwater supplies.
The FEIR further explains the difficulty of estimating the overall quantity of the
groundwater being used because so few groundwater wells are metered to quantify
production. This said, the FEIR concludes that small turbines would use "small amounts
of water" that "would not impact water supplies."
To the extent a wind turbine would require water services from a water district, the
FEIR points out that water district approval would be needed and the district must assure
that adequate water sources and entitlements are available to serve the requested waster
resources. Put differently, the FEIR concludes that most of the water needed for small
turbines will be provided by ground water and the impact will be minimal. To the extent
that additional water could be needed, the subject water district will determine if
sufficient water supply exists. There is no indication in the FEIR that small turbines will
impact the water supply in San Diego County. They simply do not require much water to
operate beyond using a small amount for cleaning purposes. Moreover, Appellants point
to no data in the record indicating that FEIR ignores small wind turbines' impact on the
water supply.
The FEIR appropriately notes that any large wind turbines will be subject to
discretionary review and be required to obtain a major use permit. As part of the Board's
discretionary review process, all future large wind turbine projects will be evaluated
under CEQA. Such consideration is proper under CEQA for a regulatory amendment.
22
(See Stanislaus, supra, 48 Cal.App.4th at p. 203; San Diego Citizenry, supra, 219
Cal.App.4th at pp. 22-23.)
3. Barotrauma to Bats
Appellants next assert that the FEIR did not adequately address the Project's
potential of causing barotrauma to bats. Barotrauma "[i]involves tissue damage to air-
containing structures caused by rapid or excessive pressure change; pulmonary
barotrauma is lung damage due to expansion of air in the lungs that is not accommodated
by exhalation." Appellants maintain that moving wind turbine blades create abrupt
waves of low pressure, which can cause passing bats to suffer grave barotrauma.
Alternatively stated, Appellants do not take the position that the FEIR did not sufficiently
consider the Project's impact on bats in general, but was inadequate because it did not
specifically and sufficiently discuss and analyze barotrauma to bats.
The FEIR clearly addresses bat fatalities caused by wind turbines. It analyzes
mortality rates and determines the Project will result in cumulatively significant impacts
to avian species, including bats, even with mitigation measures such as setbacks from
sensitive habitat areas to minimize contact, designs to reduce nesting, and height
limitations. The FEIR, however, does not address barotrauma. Appellants insist this
omission is fatal to the FEIR's compliance with CEQA. We disagree.
Because the FEIR is presumed to be legally adequate, Appellants here bear the
burden of establishing otherwise. (State Water Resources Control Bd. Cases, supra, 136
Cal.App.4th at p. 723.) As such, Appellants need to show that the FEIR had to discuss
23
barotrauma specifically despite the fact the FEIR analyzes the Project's impact on bats'
mortality rates in general. They have not done so.
Appellants point to no study or report indicating the actual mortality rate in bats
caused by barotrauma occurring near wind turbines. In a letter to the Department of
Planning and Land Use dated April 12, 2012, barotrauma is mentioned as a "recently
recognized, serious adverse impact of wind turbines on bats." However, there is no
source for this statement. In their opening brief, Appellants cite to the Environmental
Protection Agency's (EPA) comments on a draft environmental impact statement (EIS)
regarding the Campo Shu'Luuk Wind project wherein the EPA recommends that the final
EIS discuss any information available regarding differences in pressure change for
various turbine sizes that could affect barotrauma and other impacts on bats. In making
this recommendation, the EPA noted that the draft EIS failed to specify the expected bat
mortality rates and did not provide any basis for its conclusion that the project's impact
on bats would be minimal. Thus, the EPA asked for additional discussion regarding bat
mortality rates and mitigation. Here, Appellants do not explain how the Campo
Shu'Luuk Wind project is similar to the instant Project. While the EPA notes several
problems in the draft EIS's discussion of the subject project's impact on bats, Appellants
only point to one here, the absence of a discussion of barotrauma. Also, Appellants gloss
over the fact that the EPA comments are dated March 4, 2013, some two months after the
FEIR was completed. In addition, Appellants do not point to any similar comments made
by the EPA, or relevant state agency, about the FEIR here. In short, Appellants have not
24
shown by any citation to the record that it was essential for the FEIR to address
barotrauma in bats.
Also, consistent with the Tule Wind project EIR, the Board argues that the FEIR
discusses "collision" rates for bats with the understanding that it is a generic term for
mortality rates and adequately informs the public and decision makers of the Project's
significant adverse impact on bats. Further, the Board observes that the California
Department of Fish and Wildlife did not recommend additional discussion in the FEIR of
the Project's impact on bats.
We also are not persuaded by Appellants' contention that the Board usurped public
review by belatedly examining barotrauma outside the FEIR and unilaterally proclaiming
that, had it been discussed, the result would have been the same. To this end, Appellants
emphasize that the Board did not address barotrauma until May 13, 2013, two days
before final approval of the Project. Appellants are referring to the Board's response to
their comment regarding barotrauma made May 7, 2013. Appellants commented that
"[t]he risk of barotrauma to bats is a recently recognized, serious adverse impact of wind
turbines on bats. The FEIR must analyze this issue." In response, a biologist on behalf
of the Board noted that Appellants failed to cite studies providing the risks of barotrauma.
We determine that the Board's response to the Appellants' comment did not render the
FEIR legally insufficient. The comment, made at the eleventh hour, included no source
to support its conclusion that the FEIR must consider barotrauma to bats.
25
In short, the FEIR analyzed the Project's impacts on bats. Appellants have not
shown that the FEIR violated CEQA because it did not separately discuss the risk of
barotrauma on bats as a result of the Project.
IV
PROJECT ALTERNATIVES
Next, Appellants argue that the FEIR did not analyze a reasonable range of project
alternatives. Specifically, they claim the range of alternatives considered in the FEIR
was "exceptionally narrow." In addition, Appellants take issue with the FEIR failing to
consider two proposed alternatives: (1) increased setbacks between inhabited areas and
wind turbines and (2) a distributed generation policy alternative involving wind and solar
power installations on existing structures in urban areas. We find no merit in Appellants'
contentions.
As with our review of other elements of an EIR, the only role for this court in
reviewing an EIR's discussion of alternatives is to ensure that the public and responsible
officials are adequately informed of the environmental consequences of their decisions
before they are made. (Berkeley Keep Jets Over the Bay Com. v. Board of Port
Commissioners (2001) 91 Cal.App.4th 1344, 1356.)
CEQA requires an EIR to identify and discuss a reasonable range of alternatives to
a proposed project, or its location, that would feasibly attain most of the project's basic
objectives while reducing or avoiding any of its significant effects. (§ 21002.) The EIR
must evaluate the comparative merits of those alternatives. (Guidelines, § 15126.6,
subd. (a).) The requirement stems from the policy that public agencies should require the
26
implementation of feasible alternatives or feasible mitigation measures to reduce a
project's significant environmental impacts. (§ 21002.) Our Supreme Court has
described the discussion of mitigation and alternatives as "the core of an EIR." (Citizens
of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564.)
An EIR need not discuss every conceivable alternative to a project. (Guidelines,
§ 15126.6, subd. (a).) The nature and scope of the alternatives to be studied in an EIR is
governed by the rule of reason. (In re Bay-Delta Progammatic EIR Coordinated
Proceedings (2008) 43 Cal.4th 1143, 1163 (In re Bay-Delta); City of Long Beach, supra,
176 Cal.App.4th at p. 920.) Under the rule of reason, an EIR needs to discuss only those
alternatives necessary to permit a reasoned choice. (Guidelines, § 15126.6, subd. (f);
Residents Ad Hoc Stadium Comm. v. Board of Trustees (1979) 89 Cal.App.3d 274, 283.)
The range of alternatives examined in an EIR should be designed to foster
informed decisionmaking and public participation. (Guidelines, § 15126.6, subds. (a)-(f);
see Mann v. Community Redev. Agency (1991) 233 Cal.App.3d 1143, 1151 [EIR should
provide "enough of a variation to allow informed decisionmaking."].) When an EIR
discusses a reasonable range of alternatives sufficient to foster informed decisionmaking,
it is not required to discuss additional alternatives substantially similar to those discussed.
(Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1358-
1359; Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477,
491.) An EIR is not required to include alternatives suggested by members of the public
if it discusses a reasonable range of other alternatives. (Guidelines, § 15126.6, subds. (a)
& (c); see Save San Francisco Bay Assn. v. San Francisco Bay Conserv. & Dev. Comm'n.
27
(1992) 10 Cal.App.4th 908, 919, 922 [city not required to include proposed alternatives
because their advantages and disadvantages did not substantially differ from the five
prototypical alternatives selected for in-depth discussion].)
Under the applicable standard, an EIR may be found legally inadequate only if the
range of alternatives it contains is unreasonable in the absence of the omitted alternatives.
(2 Kostka & Zischke, Practice under the Cal. Environmental Quality Act (Cont.Ed.Bar
2015) § 15.17, pp. 15-24.) As the courts have stated repeatedly, " '[a]bsolute perfection is
not required; what is required is the production of information sufficient to permit a
reasonable choice of alternatives so far as environmental aspects are concerned.'
[Citation.]" (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134
Cal.App.3d 1022, 1029.) The selection of alternatives discussed "will be upheld, unless
the challenger demonstrates 'that the alternatives are manifestly unreasonable and that
they do not contribute to a reasonable range of alternatives.' [Citation.]" (California
Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 988.)
Here, the FEIR analyzes three project alternatives. The first, the limited small
wind turbine alternative, consists of three components: reduced project area, reduced
height of wind turbine towers, and fewer turbines. This alternative was determined to be
the "environmentally superior" alternative.
The second alternative discussed in the FEIR, the limited large wind turbine
alternative, involves three substantial changes from the Project. First, this alternative
would reduce the Project area and shift development to more rural and semirural areas as
designated by the General Plan. Second, large wind turbines would be permitted within
28
wind resource areas classified as "fair" through "superb" and would not be permitted
within "marginal" wind resource areas as they are with the Project. Third, this alternative
would retain the existing policies and language of the General Plan. In other words, this
option would not involve any amendment to the General Plan.
The last alternative considered in the FEIR is the no project (no zoning ordinance
amendment) alternative. This alternative did not meet any of the Project objectives.
In cursory fashion, Appellants maintain the range of alternatives considered in the
FEIR was too narrow. They, however, do not take issue with the substantive discussion
of the alternatives, but instead, imply that other alternatives should have been included,
especially such alternatives that would reduce the Project's significant environmental
impacts to a less than significant level. In making this argument, Appellants ignore the
Project's focus on renewable wind energy and claim the Project's goal is "generating
renewable energy" in general (regardless of the source). However, Appellants do not cite
to any authority that supports its position that the FEIR's goal is too narrow or otherwise
allows a challenger to change the Project's goal.
For example, Appellants claim the instant matter is analogous to Habitat and
Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277 (HAWC) and
Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866
29
(Center for Biological Diversity), and as such, the considered alternatives were
insufficient. Appellants' reliance on these two cases is misplaced.9
In HAWC, supra, 213 Cal.App.4th 1277, the subject project involved an
amendment to the City of Santa Cruz's sphere of influence to include a portion of the
University of California, Santa Cruz (UCSC) that would allow Santa Cruz to provide
water and sewer services to a new development at UCSC. (Id. at p. 1283.) The court
determined that the EIR was legally inadequate because it did not discuss any feasible
alternative, such as a limited water alternative, that could avoid or lessen the significant
environmental impact of the subject project on Santa Cruz's water supply. (Id. at
p. 1305.)
In contrast, here, in addition to the no project alternative, the FEIR specifically
addresses an alternative that could lessen the environmental impact of the Project. The
limited small wind turbine alternative would not block viewsheds that would be
obstructed by small turbines allowed by the Project, would result in less than significant
impacts to riparian habitat and other sensitive natural communities, would reduce the risk
of raptor collision, and would result in less than significant impact to human remains and
paleontological resources. Therefore, there is no analogous situation in the instant matter
like the one in HAWC, supra, 213 Cal.App.4th 1277, where the EIR did not consider any
9 In Center for Biological Diversity, supra, 185 Cal.App.4th 866, the issue before the court was not the adequacy of the considered alternatives, but the lack of substantial evidence supporting the rejection of the infeasibility of an alternative. (Id. at pp. 883- 884.) Accordingly, that case does not support Appellants' position that the FEIR's considered alternatives were too narrow. 30
alternative that would avoid or lessen the significant environmental impact of the subject
project. We thus are satisfied that the FEIR presented the public and the Board with
information sufficient to permit a reasonable choice of alternatives and Appellants have
not demonstrated that the alternatives were manifestly unreasonable. (See Village
Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra, 134 Cal.App.3d at p. 1029;
California Native Plant Society v. City of Santa Cruz, supra, 177 Cal.App.4th at p. 988.)
Further, contrary to Appellants' assertion, we conclude that the Project is not too
narrow. "CEQA does not restrict an agency's discretion to identify and pursue a
particular project designed to meet a particular set of objectives." (California Oak
Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 276-277.)
"Although a lead agency may not give a project's purpose an artificially narrow
definition, a lead agency may structure its EIR alternative analysis around a reasonable
definition of underlying purpose and need not study alternatives that cannot achieve that
basic goal." (In re Bay-Delta, supra, 43 Cal.4th at p. 1166.) "For example, if the purpose
of the project is to build an oceanfront resort hotel [citation] or a waterfront aquarium
[citation], a lead agency need not consider inland locations." (Ibid.) Likewise, a lead
agency need not consider lower density housing that would defeat the underlying purpose
of providing affordable housing. (Sequoyah Hills Homeowners Assn. v. City of Oakland
(1993) 23 Cal.App.4th 704, 715.)
Here, the underlying purpose of the Project is encouraging wind energy. With this
in mind, we consider Appellants' additional arguments that the FEIR improperly
discarded two alternatives as infeasible without more analysis.
31
"The entire purpose of the alternatives section in an EIR is to consider
environmentally superior alternatives that would 'accomplish most of the project
objectives.' " (The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202
Cal.App.4th 603, 623.) "[A] lead agency may reject an alternative as infeasible because
it cannot meet project objectives, as long as the finding is supported by substantial
evidence in the record." (Rialto, supra, 208 Cal.App.4th at p. 949.) CEQA defines "
'[f]easible' " as "capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, social, and
technological factors." (§ 21061.1.) In determining whether changes to a project are
feasible, a public agency shall consider economic, social, technological, environmental,
and other factors. (§ 15131, subd. (c).)
Absent legal error, the Board's infeasibility findings are entitled to great deference
and are presumed correct. (California Native Plant Society v. City of Santa Cruz, supra,
177 Cal.App.4th at p. 997.) "The parties seeking mandamus bear the burden of proving
otherwise, and the reviewing court must resolve reasonable doubts in favor of the
administrative findings and determination." (Sierra Club v. County of Napa (2004) 121
Cal.App.4th 1490, 1497.)
Here, Appellants challenge two alternatives that were rejected in the FEIR:
(1) increased setbacks, and (2) distributed generation policy. The FEIR notes that some
commentors suggested that large scale wind turbines should have set backs of " 'at least
1.5 to 2 miles from occupied buildings, recreation areas, public roads, protected habitat
and wildlife, and more.' " The FEIR determines that this alternative would not achieve
32
three Project objectives: (a) "[f]acilitate the use of renewable wind energy within the
County pursuant to existing and future statewide goals," (b) "[s]treamline and clarify the
approval process for the development and operation of small wind turbines," and
(c) "[u]pdate regulations for large wind turbines to be consistent with current wind
turbine technology and designs." Thus, the FEIR concludes that this alternative would
not "feasibly accomplish the basic objectives of the [P]roject."
Appellants insist that the increased setback warranted further consideration
because it satisfied five of the Project's goals. In addition, they argue that there is no
support for the conclusion that it is incompatible with the Project's fundamental goals.
We disagree.
The Project includes setbacks of at least 1.1 times the height of the large wind
turbine, subject to other concerns that may be raised in the major use permit process. The
increased setbacks alternative increases the length of the setback exponentially over that
of the Project mandated setback. No doubt such a restriction would greatly reduce the
number of wind turbines and substantially decrease the area on which wind turbines may
be placed. Therefore, it logically follows that such an alternative would not be feasible
because it does not achieve the Project's underlying purpose of encouraging wind energy.
(See In re Bay-Delta, supra, 43 Cal.4th at p. 1165.) Indeed, the increased set back
alternative would have made the Project's purpose very difficult to achieve as it would
significantly reduce where a large wind turbine could be placed.
The distributed generation policy alternative would have required the Board to
develop a policy that ranks renewable energy projects in a manner that gives preferences
33
to, or otherwise incentivizes, distributed generation projects in urbanized areas. For
example, Appellants state that this alternative would have encouraged small wind and
solar electricity facilities atop existing structures in urban areas. The FEIR determines
that the distributed generation policy is infeasible for two reasons. First, it asserts that the
Board regulates land uses and development within its jurisdiction, but does not regulate
energy distribution on a global level. Instead, the FEIR notes that the Californian Public
Utility Commission would be the appropriate authority to implement a distributed
generation policy. Second, the FEIR observes the County has limited wind resources
areas, which lie predominately outside of urbanized areas. Therefore, incentivizing
distributed generation in urbanized areas would discourage wind projects away from the
areas of the County with the greatest wind resource potential. As such, the FEIR
ultimately concludes that the distributed generation policy alternative is outside the scope
of the Project and is "not conducive to achieving the [P]roject objectives."
Appellants take issue with the FEIR's failure to further consider the distributed
generation policy alternative. They assert FEIR's first reason for rejecting this alternative
is false and that the Board has the authority to finance programs to incentivize local
distributed generation renewable energy sources. However, we need not resolve this
dispute because we are satisfied that the FEIR's second reason for rejecting the
distributed generation policy is sound.
Again, Appellants' argument is based on the faulty premise that the Project's
purpose is too narrow. It is not. The Project amends current zoning requirements
involving wind turbines. Nevertheless, Appellants claim that the only purpose of a wind
34
turbine is to generate renewable energy. Therefore, they conclude the Project's true
purpose is to generate renewable energy regardless of the source. According to
Appellants, the FEIR should have considered all means of generating renewable energy
that would have less of an environmental impact than the Project. Appellants' argument
overlooks that the Project is focused on addressing zoning for wind turbines specifically,
not merely encouraging the production of renewable energy in general. Although there
may be other sources of renewable energy, Appellants have not pointed to any authority
that would require the FEIR to consider all sources of renewable energy in connection to
a Project focusing on encouraging the production of wind energy through zoning
amendments. There is nothing in CEQA that prohibits such a scope of a proposed
project. (See California Oak Foundation v. Regents of University of California, supra,
188 Cal.App.4th at pp. 276-277.) The FEIR properly rejected the distributed generation
policy alternative.
V
STATEMENT OF OVERRIDING CONSIDERATIONS
"An agency must adopt a statement of overriding considerations when it approves
a project in spite of significant, unavoidable environmental impacts that cannot be
"Overriding considerations contrast with mitigation and feasibility findings. They
are 'larger, more general reasons for approving the project, such as the need to create new
jobs, provide housing, generate taxes, and the like.' [Citation.]" (Woodward Park, supra,
150 Cal.App.4th at p. 717.) By contrast, mitigation and feasibility findings " 'typically
focus on the feasibility of specific proposed alternatives and mitigation measures.' "
(Sierra Club v. Contra Costa County, supra, 10 Cal.App.4th at p. 1222.) Overriding
considerations are intended to show the "balance" the agency struck in weighing the
" 'benefits of a proposed project against its unavoidable environmental risks.' " (Ibid.)
In its statement of overriding considerations, the Board provides four categories of
benefits for approving the Project despite its significant environmental impacts that could
not be mitigated. These categories are energy and greenhouse gas reduction benefits,
technological benefits, economic benefits, and regulatory benefits. Under each category,
the Board more thoroughly explains the expected benefits.
For example, the Board points out that the Project will help reduce potential
energy shortages and outages by allowing the development of small and large wind
turbines that will help provide a local energy supply. The Board also emphasizes that the
Project will further the goals of the California Renewable Portfolio Standard and other
similar renewable projects in the state.
36
The Board also discusses the technological benefits of the Project. The Project
brings the zoning regulations in line with current wind turbine technologies and provides
expanded opportunities for wind turbine development.
In regard to economic benefits, the Board concedes the Project is not expected to
generate a significant number of new permanent jobs, but would result in some new job
opportunities, such as temporary construction jobs. The Board further observes the
Project will provide residents with relief from high energy costs and reduce demand on
utility systems. In addition, the Board notes large wind turbine projects developed under
the Project could benefit economies of rural communities by providing a steady income
through lease or royalty payments to farmers and other landowners.
The Board also discusses several regulatory benefits. The Project streamlines and
clarifies the approval process for the development and operation of small wind turbines.
The Project's criteria for small turbines will help reduce potential environmental impacts
from small turbines. And the Project will expand opportunities for large wind turbines by
updating currently outdated zoning regulations to accommodate current wind turbine
technology.
Like mitigation and feasibility findings, however, overriding considerations must
be supported by substantial evidence in the EIR or elsewhere in the administrative record.
(Sierra Club v. Contra Costa County, supra, 10 Cal.App.4th at p. 1223; Guidelines,
§ 15093, subd. (b).) A lead agency's decision to approve a project despite its significant
environmental impacts is a discretionary policy decision, entrusted to it by CEQA, and
will be upheld as long as it is based on findings of overriding considerations that are
37
supported by substantial evidence. (Towards Responsibility in Planning v. City Council
(1988) 200 Cal.App.3d 671, 685; Sierra Club v. Contra Costa County, supra, at p. 1224;
§§ 21002, 21083.)
Appellants challenge the statement of overriding considerations on two grounds.
First, they argue that the FEIR's insufficient analysis of Project alternatives renders the
statement invalid. As we discuss above, the FEIR sufficiently addresses Project
alternatives and explains why some alternatives were infeasible. Therefore, we find no
merit to Appellants' first argument.
Second, Appellants claim sufficient evidence does not support the statement of
overriding considerations. We disagree.
Ostensibly, Appellants challenge the evidence supporting the Board's finding that
the Project produces economic benefits. However, a closer examination of Appellants'
contentions reveals that they actually take issue with the Board's conclusion that the
economic benefits outweigh the Project's significant environmental impacts. For
example, Appellants emphasize that the Project will result in temporary jobs. This is
precisely what the Board concedes in the statement of overriding considerations: "While
the Project is not expected to generate a significant number of new permanent jobs, some
new job opportunities would result, such as temporary construction jobs." And although
Appellants contest some of the evidence the superior court cited in denying their petition
for a writ of mandate, Appellants fail to " 'lay out the evidence favorable to the [Board]
and show why it is lacking.' " (San Diego Citizenry, supra, 219 Cal.App.4th at p. 12.)
This approach is fatal to their claim. (Id. at p. 17.) Moreover, Appellants simply ignore
38
the other evidence in the record (letters from green power companies and testimony at
San Diego Planning Commission and Board meetings) that supports the Board's
conclusion that the Project would result in temporary jobs.
Overlooking this evidence, Appellants maintain: "[N]either the FEIR nor the
Statement provides any supporting analyses showing how 'some' temporary construction
jobs would confer an economic benefit sufficient to outweigh the Project's 24 significant
environmental impacts." (Italics in original.) Therefore, Appellants are not challenging
the evidence supporting the Board's determination that the Project would create
temporary jobs, but instead, dispute the Board's decision to approve the Project despite its
environmental impacts. However, as permitted under CEQA, the Board determined that
the benefits arising out of the Project outweighed the Project's adverse environmental
impacts. (See California Native Plant Society v. City of Santa Cruz, supra, 177
Cal.App.4th 957, 983, quoting City of Marina v. Board of Trustees of California State
University (2006) 39 Cal.4th 341, 368 [The override decision "lies at the core of the lead
agency's discretionary responsibility under CEQA and is, for that reason, not lightly to be
overturned."].) Here, Appellants have not provided any reason that the Board's finding
that the Project would create temporary jobs is not supported by substantial evidence or
any other valid reason for challenging the Board's finding that the Project provides an
economic benefit in the form of temporary jobs. They simply ask this court to reconsider
the Board's balancing of Project benefit and impacts. This we cannot do. "It is not this
court's place to second-guess this discretionary policy determination, but to uphold it if
39
substantial evidence supports its underlying findings." (Cherry Valley, supra, 190
Cal.App.4th at p. 359.)
Appellants' attack on the second economic benefit fares no better. Instead of
arguing that there is insufficient evidence that small turbines would provide residents
with relief from high energy costs, Appellants claim that "the FEIR provides no analysis
demonstrating that small turbines would in fact produce energy at less cost than roof-top
solar and other forms of distributed energy." Appellants do not take issue with the
evidence supporting this benefit, but instead, insist that the Board had to compare the
Project's economic benefits with the economic benefits of the distributed generations
policy alternative. To this end, they rely on Uphold Our Heritage v. Town of Woodside
(2007) 147 Cal.App.4th 587 (Uphold Our Heritage). Appellants' reliance on that case is
misplaced.
Contrary to Appellants' contention, Uphold Our Heritage, supra, 147 Cal.App.4th
587, does not stand for the proposition that a Board cannot justify a Project based on
benefits that a rejected alternative would have provided. That case addressed whether
substantial evidence supported the finding that all the alternatives analyzed in the EIR
were "economically infeasible" when there were no costs in the record regarding the
subject project. Here, the FEIR determined that the distributed generations policy
alternative was infeasible because it did not achieve the Project's objective of
encouraging wind energy. The Project involves zoning amendments regarding small and
large wind turbines. It was not concerned with renewable energy in general. Thus, the
alternative to incentivize renewable energy in general, in urban areas, was beyond the
40
focus of the Project. The FEIR properly rejected it and nothing in Uphold Our Heritage
leads us to question the substantial evidence supporting the Board's stated economic
benefit that small turbines would provide residents with relief from high energy costs.
In addition, Appellants claim the Board's stated third economic benefit10 is not
supported by substantial evidence. They assert that the trial court improperly "rested its
decision on one insubstantial statement that some payments are, at undisclosed times and
in undisclosed quantities made to land owners." Appellants have not satisfied their
burden to put forth all evidence favorable to the decision and explain why it is
insufficient. (See San Diego Citizenry, supra, 219 Cal.App.4th at p. 12.) Here, the FEIR
includes the statement that, "[l]arge wind turbine projects can benefit economies of rural
communities by providing a steady income through lease or royalty payments to farmers
and other landowners." The FEIR bases this statement on a document entitled "Wind
Energy and the Environment" that was accessed October 17, 2010, on the American
Wind Energy Association Web site. Appellants have not cited to the record where they
challenged the validity of this article or otherwise offered contrary evidence for the
Board's consideration. Appellants have not sufficiently explained why the FEIR cannot
rely on this article. In short, they have not shown that substantial evidence does not
support the Board's finding that the Project will produce the third economic benefit.
10 The third economic benefit discussed by the Board is that large wind turbine projects developed under the Project could benefit economies of rural communities by providing a steady income through lease or royalty payments to farmers and other landowners. 41
Appellants' challenge of the technological and regulatory benefits found by the
Board is similarly flawed. Again, Appellants fail to provide the evidence in the record
and explain why it is insufficient. Instead, they claim the benefits are not actually
benefits and do not outweigh the Project's significant environmental impacts. This is not
a proper challenge of the statement of overriding considerations. Appellants' failure to
discuss the evidence in the record purporting to support the Board's determination of
Project benefits is fatal to their challenge. (San Diego Citizenry Group, supra, 219
Cal.App.4th at p. 17.)
Further, we are satisfied that the technological and regulatory benefits are
supported by substantial evidence.
In summary, the statement of overriding considerations is supported by substantial
evidence. Appellants do not provide any compelling argument to the contrary.
Consequently, the Board's policy decision that the Project benefits outweigh its
environmental impacts cannot be overturned. (See San Diego Citizenry Group, supra,
219 Cal.App.4th at p. 24; California Native Plant Society v. City of Santa Cruz, supra,
177 Cal.App.4th at p. 983. We will not second guess the Board's exercise of discretion.
(See Cherry Valley, supra, 190 Cal.App.4th at 359.)
42
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
43
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment denying the petition for writ of mandate, holding that the Environmental Impact Report (FEIR) for the wind turbine project complied with the California Environmental Quality Act (CEQA) and that the Board's approval was supported by substantial evidence.
Issues
Whether the FEIR adequately addressed significant environmental impacts, including public safety hazards and water supply concerns.
Whether the Board considered a reasonable range of project alternatives.
Whether the Board provided an adequate statement of overriding considerations supported by substantial evidence.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The potential for personal injury caused by an operation accident is a safety concern, but it is not an environmental impact that must be studied in an EIR.”
“A court's task is not to weigh conflicting evidence and determine who has the better argument.”