Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS121501 David P. Yaffe, Judge.
Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant.
Law Offices of Saul Reiss and Saul Reiss for Defendants and Respondents and Real Party in Interest.
ALDRICH, J.
INTRODUCTION
By way of a petition for writ of administrative mandate, Save Our Neighborhood Group (Song) unsuccessfully sought to overturn the certification under the California’s Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.; Cal. Code Regs., tit. 14, § 15000 et seq. (Guidelines)) by the City of Lancaster (the City) of a Final Environmental Impact Report (FEIR) evaluating a project to amend the City’s general plan and to change zoning to allow construction of a shopping center on a vacant lot in an area of the City originally zoned for residential use. Song appeals contending that (1) the City violated certain California housing mandates in the Planning and Zoning Law (Gov. Code, §§ 65000 et seq. & 65863) and (2) failed to select an alternative to the project identified in the FEIR. We reverse the judgment denying Song’s writ petition.
All further statutory references are to the Public Resources Code, and all references to the CEQA regulations are to the State CEQA Guidelines, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
1. The project
The project at issue involves an amendment to the City’s general plan and the conversion of a 22.34-acre parcel of residentially-zoned land, owned by real party in interest AV California, LLC, to commercial, to enable AV California to construct a commercial shopping center at the northwest corner of the intersection of 60th Street West and Avenue K in the City. The site is a relatively undeveloped area of west Lancaster surrounded by residential and small commercial uses, and was previously occupied by a nine-hole golf course that has not been operational since the 1990s. The project’s parcel was zoned for residential purposes in the City’s general plan.
The proposed shopping center is expected to encompass 236, 109 square feet of commercial uses. The center would include a total of eight buildings anchored by a 139, 410 square-foot home improvement store with attached 31, 659 square foot outdoor garden center. A separate gas station and convenience store are also included in the plans along with fast food and restaurant operations. To enable construction, the City proposed to change its general plan’s land use classification for the site from urban residential (UR) of 2.1-6 dwelling units per net acre to commercial (C), and to rezone the site from single-family residential with a minimum lot size of 7, 000 square feet (R-7000) to commercial planned development (CPD).
2. Environmental review
The City noticed the preparation of an EIR for the project in July 2007. The notice prompted public comment.
The draft EIR recognized that because of “its comparatively affordable housing supply, the Antelope Valley area has long been a housing-rich region within Los Angeles County.” The predominant form of housing in the Antelope Valley region is single-family detached residences, accounting for 80.7 percent of the area’s housing stock, with apartments comprising 8.5 percent of the housing. The City “has a high proportion of housing to jobs” ratio, “reflect[ing] the City’s current character as a ‘bedroom’ community for Los Angeles County.” The Southern California Association of Governments (SCAG) projected there to be 66, 591 households in the City in 2020 and 81, 403 households by 2030. The draft EIR explained that this rate of growth in households between 2005 and 2020 is expected to be twice that of the City’s future job base for the same time period. A balanced region, according to SCAG, has a ratio of approximately 1.22 jobs for each housing unit in the community. The City’s job to housing ratio was balanced as of the date of the draft EIR, but by 2030, that ratio was projected to fall to.88, with the result the City would become even more of a “bedroom” community without sufficient jobs to meet its residents’ future employment needs.
As for housing, the draft EIR noted that SCAG projected a population growth in the City of 929 new residents by the time the project is completed. The forecasted impact on housing, the draft EIR concluded, would be “less than significant” because the increase in population expected to be generated by the project would “be well within [the City’s] currently anticipated population growth” estimated by the SCAG. Meanwhile, the project would reduce the amount of retail spending that is currently leaking out of the local economy because residents shop outside of the City. In fact, the project was anticipated to attract retail spending from nearby areas. Thus, the shopping center “would generate approximately 345 new jobs.” In short, the draft EIR explained, the effect on housing “would actually be far less than the conservatively estimated 926 new residents” because the City’s comparatively high current unemployment rate suggests that many of the new jobs would likely be taken by existing residents.
On April 20, 2009, the City’s Planning Commission held a public hearing on the project, at which numerous people spoke. At the close of the public hearing, the planning commission adopted resolution No. 09-11 recommending the city council certify the FEIR to “ ‘approv[e]... General Plan Amendment No. 05-1 to redesignate the subject property from UR [urban residential] to C [commercial]” and “approv[e]... Zone Change No. 05-01... to rezone the subject property from R-7000 to CPD.’ ” Toward that end, the planning commission found that “There is a need for the proposed land use designation of C (Commercial) because the commercial designation would provide goods and services to the surrounding residential properties and to establish appropriate infill development.” The commission also found that the amendment was consistent with Objective 16.1 of the general plan to “ ‘[a]chieve and maintain a balance between the number and types of jobs and the amount and cost of housing available within the Lancaster General Plan study area[, ]’ ” as the project would “provide local employment opportunities for current and future residences in the area.” The project “is designed to provide valuable retail space in an underserved area” and so it would meet Policy 17.1.3 of the general plan to provide commercial developments to serve regional, community, and neighborhood functions as “an upgrade [to] existing vacant properties.” Finally, the commission found “[a] need for the proposed zone classification of CPD exists within such area in order to allow for the logical location of commercial development to meet the economic, lifestyle and social needs of current and future residen[ts].”
On May 12, 2009, after conducting a public hearing on the project, the city council adopted resolution No. 09-36 certifying the FEIR, adopting required environmental findings, a statement of overriding considerations, a mitigation and monitoring program, and approving General Plan Amendment No. 05-01. The City’s Notice of Determination was filed on June 2, 2009.
3. Procedural history
Song formed after approval of the project and brought the instant petition for writ of mandate alleging the City violated CEQA by failing to, as is relevant to this appeal, (1) assess the project’s impacts on the surrounding residences; and (2) adequately analyze the conflict between the project’s land use on the one hand, and the City’s general plan and zoning ordinances on the other hand.
The trial court ruled that Song lacked standing to bring this CEQA challenge because it failed to submit evidence to support its allegation under Public Resources Code section 21177, subdivisions (a) and (b) that it had standing. The court then ruled on the substantive issues in the event Song demonstrated that a declaration showing standing had actually been filed with the court. After the judgment based on the court’s tentative was entered, Song filed its timely appeal.
CONTENTIONS
Song contends the trial court erred in denying its writ petition because (1) it had standing; and (2) the City violated CEQA by failing to address certain housing mandates in the Planning and Zoning Law, and by improperly rejecting certain environmentally preferred alternatives to the project.
DISCUSSION
1. Procedural issues
a. Song has standing
The trial court ruled that Song failed to demonstrate it had standing. The City had raised Song’s lack of standing as an affirmative defense to Song’s writ petition. At the time the court made its tentative ruling on the writ petition, Song had not submitted evidence of its organizational standing.
Public Resources Code section 21177 allows an organization formed after approval of a project to maintain an action under CEQA provided that a member of that organization has complied with subdivisions (a) and (b) of that section. (§ 21177, subd. (c).) At the relevant time, subdivisions (a) and (b) read: “(a) No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period... or prior to the close of the public hearing on the project before the issuance of the notice of determination. [¶] (b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period... or prior to the close of the public hearing on the project before the issuance of the notice of determination.” Although often referred to as an obligation to exhaust administrative remedies, subdivisions (a) and (b) of section 21177 really constitute a standing requirement. (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 590.)
Song thought it had filed in the trial court the declaration of Paul Jennings, a City resident and president of Song in support of its standing allegation. It was not until the hearing on the writ petition when the court informed the parties of its tentative ruling, that Song’s attorneys learned that the Jennings declaration was not included in the record and counsel for the City and AV California had not received copies. Although Song requested permission to have a copy of the Jennings declaration faxed to the clerk, the court required Song instead to proceed by way of a motion for reconsideration (Code Civ. Proc., § 1008). Nonetheless, Song immediately faxed the court a copy of Jennings’ declaration, which had been executed on December 9, 2009, one month before the hearing on Song’s writ petition. In it, Jennings declared that he and other City residents expressed opposition to the project before the planning commission and the city council.
Song filed its timely motion for reconsideration and, together with the City and real party in interest, stipulated to a continuance of the hearing on that motion until April 20, 2010. However, on April 2, 2010, the date the court had originally set for the hearing, the trial court “rejected” the continuance stipulation and summarily denied the motion for reconsideration.
It is manifest that Song complied with section 21177 and so Song has standing. Mr. Jennings did appear before the city council and orally and objected to the agency during the public comment period. He also wrote a letter during the comment period. (Id., at subds. (a)-(c).) So did Mrs. Jennings, also a member of Song, as well as other Song members.
The City argues that Song failed to raise before the city council the specific issues alleged in its writ petition, namely the FEIR’s failure to (1) conduct an adequate assessment of the project’s reasonably foreseeable and cumulative impacts, (2) adequately analyze the project’s land use conflict with the general plan and zoning, and (3) address air quality impacts. Viewing the record, including the minutes from the city council redevelopment agency meeting on May 12, 2009 and the planning commission hearing on January 20, 2009, (see fn. 2), they show that Mr. Jennings objected to the lack of buffer zone between the residences and the proposed shopping center, and argued that a big box store should not be built in a residential area. He also wrote a letter to the planning commission prior to the commission’s hearing, in which he objected to the project on the grounds, among other things, that the project would change the general plan and rezone the property. In her appearance at the planning commission hearing, Mrs. Jennings objected to building more shopping centers. She also argued that the City should not change the area from residential to commercial. Another member of Song argued that the shopping center would ruin the neighborhood and would be harmful to the area. We conclude therefore that Song adequately appraised the City that its members believed that the impacts of developing a shopping center in a residential zone were substantial and deleterious, and were contrary to the City’s general plan and zoning. (Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1750, citing Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163.) Members of Song appeared and objected orally and in writing during the administrative process and raised the issue of conversion of the property from residential to commercial, and so Song satisfied the organizational standing requirements of CEQA. (§ 21177, subds. (a)-(c).)
Song lodged a copy of the minutes from the city council redevelopment agency meeting on May 12, 2009.
The City also argues that Song’s failure to demonstrate its standing shows that Song’s lawsuit is a “sham.” The contention is unavailing. The City relies on amendments to section 21177, subdivision (c) that became effective September 29, 2010, after the judgment was entered and after Song had filed its appeal. There is nothing in the amendments to indicate that they are to be applied retroactively. Even if the amendments were retroactively applied, however, as we analyzed, Song has complied with subdivision (c) of section 21177. That subdivision reads, with the amendment at issue in italics: “(c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivisions (a) and (b). The grounds for noncompliance may have been presented directly by a member or by a member agreeing with or supporting the comments of another person.” (Italics added.) Song members Mr. and Mrs. Jennings and others directly and adequately presented the grounds for noncompliance. The lawsuit is not a sham for the lack of organizational standing.
b. This proceeding is not moot.
The City also contends that Song’s writ petition is moot because the City revised its general plan, superseding the version of the plan in dispute. In support of its argument, the City asks us to take judicial notice of the city council’s July 14, 2009 Resolution No. 09-52. That resolution certified the FEIR for the comprehensive general plan update for the entire City. Citing no case law or other evidence, the City argues that the revised plan determined that the property in question in this appeal was “ruled commercial” and so Song’s writ proceeding is moot. Not only has the City waived this contention by providing no real argument, supported by authority, to justify its position (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785), but the City has not provided this court with a copy of the modification to the general plan addressed by the Resolution No. 09-52 and so we are unable to determine what the revised general plan does that is pertinent to this appeal. The contention is unavailing.
The City requested attorney fees under Code of Civil Procedure section 1021.5 on the ground that Song had filed a sham lawsuit. Apart from the fact that we disagree that this is a sham lawsuit, we note section 1021.5 precludes public entities such as the City from recovering attorney fees under that statute from any party other than another public entity. (Code Civ. Proc., § 1021.5; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 285, p. 883; City of Carmel-By-The-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 255.) Thus, we deny the City’s request for attorney fees and costs incurred in defending this action.
We turn to the substantive issues in this appeal.
2. Substantive CEQA challenges
a. Overview of CEQA and standard of review
“ ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ [Citation.]” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393 (Laurel Heights I).) Accordingly, our task in reviewing an EIR is limited. (Ibid.) We “ensure that the public and responsible officials are adequately informed ‘ “of the environmental consequences of their decisions before they are made.’ [Citation.]” (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1356.)
With respect to the standard of review, “If the substantive and procedural requirements of CEQA are satisfied, a project may be approved even if it would create significant and unmitigable impacts on the environment. [Citation.] ‘In reviewing an agency’s determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. (§ 21168.5.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.’ [Citation.] Courts are ‘not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.’ [Citation.] ‘ “The appellate court reviews the administrative record independently; the trial court’s conclusions are not binding on it.” ’ [Citation.]” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197 (Bakersfield).)
“ ‘ “The EIR must contain facts and analysis, not just the bare conclusions of the agency.” [Citation.] “An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” ’ [Citations.] ‘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.’ [Citation.]” (Bakersfield, supra, 124 Cal.App.4th at p. 1197, citing § 21005, subd. (b).) “The question whether an EIR is sufficient as an informative document depends on the lead agency’s [here, the City] compliance with CEQA’s requirements for the contents of an EIR: whether the EIR reflects a reasonable, good faith effort to disclose and evaluate environmental impacts and to identify and describe mitigation measures and alternatives; and whether the final EIR includes reasonable responses to comments on the draft EIR raising significant environmental issues. [Citations.]” (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2011) § 11:37, p. 567.) “Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390-1391 (Irritated Residents).) “Therefore, ‘[n]oncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.’ [Citations.]” (Bakersfield, supra, at pp. 1197–1198, citing, Irritated Residents, supra, at p. 1391 & § 21005, subd. (b) [there is no presumption that error is prejudicial].)
“ ‘Failure to comply with the information disclosure requirements constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decisionmaking and informed public participation, regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirements. [Citations.]’ [Citations.]
“We apply the substantial evidence test to conclusions, findings, and determinations, and to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact, and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions. [Citation.] ‘ “Substantial evidence” ’ is defined as ‘ “ ‘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.’ ” ’ ‘Substantial evidence is not “[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment.... Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” ’ [Citations.]
“As our supreme court succinctly put it, ‘an agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, “scrupulously enforc[ing] all legislatively mandated CEQA requirements” [citation], we accord greater deference to the agency’s substantive factual conclusions.’ [Citation.]” (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 897-899 (Long Beach).)
b. Housing
(i) The FEIR does not address housing density.
Song contends the FEIR violated Government Code section 65863, subdivision (b) because the City failed to make two “written findings supported by substantial evidence, ” to justify reducing the housing density in the City in order to build the project.
Government Code section 65863, subdivision (b) states in relevant part: “(b) No city... shall... reduce... the residential density for any parcel to, or allow development of any parcel at, a lower residential density, as defined in paragraphs (1) and (2) of subdivision (g), unless the city... makes written findings supported by substantial evidence of both of the following: [¶] (1) The reduction is consistent with the adopted general plan, including the housing element. [¶] (2) The remaining sites identified in the housing element are adequate to accommodate the jurisdiction’s share of the regional housing need pursuant to Section 65584 [i.e., the need as determined by the Department of Housing and Community Development and SCAG].”
Song’s specific argument under Government Code section 65863, subdivision (b) is that by rezoning the project site from residential to commercial, the City lowered the site’s residential density from 138 houses to zero. Song argues that the project thus will violate Government Code section 65863, subdivision (g) by impermissibly reducing residential density to less than “80 percent of the maximum allowable residential density” for the project’s parcel. (Gov. Code, § 65863, subd. (g)(2)(A)(i).) The City admits that the project will result in a loss of 91 units. Hence, Although the FEIR makes no mention of density, the parties agree that the project would result in a reduction of available housing.
In defense of its FEIR, the City argued to the trial court that Government Code section 65863 “does not provide any specific form for the findings necessary for compliance” with that statute. At a minimum, the written findings should refer to the general plan’s “housing element” by name and must contain an adequate discussion of the findings required by Government Code section 65863, subdivision (b)(1) and (2). Here, as Song demonstrated by a November 19, 2008 letter from California’s Department of Housing and Community Development (HCD), the then most recent version of the housing element in the City’s general plan, adopted in August 2008, did not comply with California’s Housing Element Law (Gov. Code, §§ 65580-65589.8 (the Housing Element Law or Article 10.6)) because, inter alia, the general plan failed to address the shortfall of identified sites to meet the City’s share of the regional housing needs. Stated otherwise, the City already lacked sufficient housing, even before commencing work on the FEIR for a project to amend the general plan to further reduce available housing.
On appeal, the City made no legal argument supported by facts directed at its compliance with Government Code section 65863, and so it has forfeited the issue. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
With respect to whether the FEIR otherwise complied with Government Code section 65863, the City pointed to its “Land Use and Planning” discussion where it made the finding that there would be “less than significant” impact, or that any significant impact would be avoided, “ ‘with respect to impacts associated with the project[’]s consistency with the City of Lancaster’s General Plan/Zoning Ordinance.’ ” The City argues because the general plan law “requires that the City provide adequate sites to meet the regional housing needs, the finding of consistency with the General Plan is sufficient to meet both [required findings] of Government Code section 65863.”
To the contrary, even assuming that the finding cited by the City constitutes the first of the requisite two findings necessary under Government Code section 65863, subdivision (b) namely that “[t]he reduction is consistent with the adopted general plan, including the housing element” (Gov. Code, § 65863, subd. (b)(1), italics added), reviewing the FEIR we are unable to discern any written determinations, let alone ones supported by substantial evidence of the second requisite finding, i.e., that “remaining sites identified in the housing element” would be “adequate to accommodate the jurisdiction’s share of the regional housing need” as determined by HCD and SCAG. (Id., subd. (b)(2).) As noted, “ ‘[s]ubstantial evidence is defined as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion.” ’ ” (Bakersfield, supra, 124 Cal.App.4th at p. 1198.) Yet, not only does the FEIR make absolutely no reference to the general plan’s “housing element, ” but there is no mention in the FEIR about “remaining sites identified in the housing element” or whether they would be “adequate to accommodate” the City’s share of the regional housing needs given the project’s reduction in housing.
The City made some calculations for the trial court in an effort to demonstrate that a “small fraction of the City of Lancaster... will provide land” for “more than 20% of the entire housing need for the entire City of Lancaster for the time period 2010 to 2020.” The City has the obligation to provide the necessary facts and analysis to support its findings and may not rely on bare conclusions. (Bakersfield, supra, 124 Cal.App.4th at p. 1197.) Although our review of the sufficiency of the facts to support the findings in an FEIR is deferential (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435), the appellate court is not in the business of making or inferring the requisite findings. We can locate no facts whatsoever in the administrative record that address the impact of the project on the general plan’s housing element or on housing density, where the very purpose of the project is to amend the City’s general plan and to change zoning from residential to commercial, to reduce available land for housing. The City’s failure to meet the information disclosure requirements of CEQA constitutes a prejudicial abuse of discretion because the complete omission of information concerning the housing element and housing density has precluded informed decision making and informed public participation. (Bakersfield, supra, at p. 1198.)
(ii) There is no showing that Evidence Code section 669.5 is relevant to this project.
Song argues, based on Evidence Code section 669.5, that with the approval of the FEIR, the City’s adoption of Ordinance No. 923 rezoning the project site from residential to commercial is presumed to have an impact on the supply of residential units. (Evid. Code, § 669.5, subd. (a).) Thus, Song argues, the City carried the burden of proof that Ordinance No. 923 “is necessary for the protection of the public health, safety, or welfare of the population of the city....” (Evid. Code, § 669.5, subd. (b).) The City counters that Song pointed to no evidence that Evidence Code section 669.5 applies to the project or to any ordinance enacted by the City approving the project.
Evidence Code section 669.5 reads in part: “(a) Any ordinance enacted by the... city... which... changes the standards of residential development on vacant land so that the governing body’s zoning is rendered in violation of Section 65913.1 of the Government Code [requiring cities to designate and zone sufficient vacant land for residential use in relation to growth projections of the general plan to meet housing needs] is presumed to have an impact on the supply of residential units available in an area which includes territory outside the jurisdiction of the city.... [¶] (b) With respect to any action which challenges the validity of an ordinance specified in subdivision (a) the city... shall bear the burden of proof that the ordinance is necessary for the protection of the public health, safety, or welfare of the population of the city....” (Italics added.)
Government Code section 65913.1, subdivision (a) reads in relevant part, “In exercising its authority to zone for land uses and in revising its housing element pursuant to Article 10.6 (commencing with Section 65580) of Chapter 3, a city, county, or city and county shall designate and zone sufficient vacant land for residential use with appropriate standards, in relation to zoning for nonresidential use, and in relation to growth projections of the general plan to meet housing needs for all income categories as identified in the housing element of the general plan.”
Song and the City each argue the other bears the burden to show whether Evidence Code section 669.5 is applicable to this project. Here, Song as the party arguing the City failed to comply with the statute had the responsibility to show how the statute applies in the first instance. (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1546 [challenger carries burden of proving EIR’s legal inadequacy].) Obviously, the City adopted Ordinance No. 923 which rezoned the project site from residential to commercial. Yet, Song provided no evidence that as a result of the Ordinance, the City’s zoning “is rendered in violation of Section 65913.1 of the Government Code” as specified under Evidence Code section 669.5, subdivision (a). We have reviewed HCD’s November 19, 2008 letter addressing the August 2008 version of the City’s general plan’s housing element. The letter makes no mention of insufficient vacant land. Consequently, there is nothing in the record to suggest that by virtue of the City’s adoption of Ordinance No. 923 rezoning the project site from residential to commercial, the City lacks sufficient vacant land for residential use in relation to growth projections in the general plan to meet housing needs. (Gov. Code, § 65913.1, subd. (a).) Thus, Song did not demonstrate that the presumption of Evidence Code section 669.5, namely that the rezoning had “an impact on the supply of residential units available, ” arose.
c. Alternatives
Song raises one challenge to the FEIR’s analysis of alternatives to the project. Song contends that the City violated CEQA by rejecting (1) the so-called “ ‘No Project/Existing Zoning-Residential Alternative’ ” and (2) the “ ‘Reduced Density Alternative.’ ”
Song also argues the FEIR’s “alternatives analysis was flawed from the outset by failing to analyze a ‘reasonable range’ of alternatives.” However, Song failed to support this assertion with reasoned argument and citations to authority, and so it has waived the contention concerning the range of alternatives. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
“The EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. A matrix displaying the major characteristics and significant environmental effects of each alternative may be used to summarize the comparison.” (Guidelines, § 15126.6, subd. (d).) An EIR’s “discussion of alternatives need not be exhaustive, and the requirement as to the discussion of alternatives is subject to a construction of reasonableness. The statute does not demand what is not realistically possible, given the limitation of time, energy and funds.” (Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 910; see also Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1351; cf. § 21002.)
(i) The “No Project/Existing Zoning-Residential Alternative”
The first alternative challenged by Song assumes that the project site would not be developed as proposed, but does not preclude development in the future as single family residences. Song argues, where this alternative is “environmentally superior” to the proposed project, that the City was not permitted to reject it simply because it did not avoid or reduce a majority of the significant impacts of the proposed project. We disagree.
In support of its contention, Song cites section 21002 that “ ‘The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects....’ ” (Italics added.)
The administrative documents contain four pages of analysis of each of the relevant impacts of this alternative. The FEIR found specifically that the first challenged alternative “does not avoid or substantially lessen a majority of the significant impacts of the proposed project” and cited in particular, effects of this option on traffic, and on construction-related air quality and noise. (Italics added.) The FEIR concludes, based on evidence, that this alternative would not “substantially lessen the significant environmental effects” (§ 21002). Thus, there is no evidence the alternative would be sufficiently environmentally superior to the project to justify its selection over the project.
More important, Song conveniently omitted the second sentence from section 21002, which proclaims, “The Legislature further finds and declares that in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof.” (Italics added.) The FEIR found that the first challenged alternative “would not meet the goals and objectives of the project applicant to build a commercial shopping center that serves the local community that is economically sustainable and provides employment and shopping opportunities for local residents.” The administrative record makes clear that the project would create much needed jobs in what is otherwise a bedroom community. The draft EIR demonstrates that in the previous 10 years, the City’s unemployment rate has been 40 percent above the rate of Los Angeles County as a whole, and that the City has a high proportion of housing compared to jobs. In sum, the administrative record demonstrates that specific economic and social conditions make this alternative infeasible as compared to the project itself, with the result the City did not err in selecting the project over this alternative.
(ii) The “Reduced Density Alternative”
The second alternative preferred by Song would involve a shopping center without a gas station/car wash or a big-box retailer, but would include two 30-foot landscaped setbacks with a plaza along two perimeters, so that the development would be approximately 50 percent of that proposed for the project. The FEIR concluded that while the reduced density alternative would diminish some of the negative environmental impacts over the project itself, such as traffic and air emissions, the reduction would not limit the impacts of the proposed project to a level of “insignificance.” Moreover, the alternative “would not meet the goals and objectives of the project applicant” because a shopping center that is 50 percent smaller than the proposed project, “is not economically sustainable.” (Italics added.)
The trial court ruled that the record was lacking a statement by the developer that he would not develop the project if it did not include a big box retail use. The court ruled that if the action were not barred for lack of organizational standing, “the court will hear further argument as to whether the evidence in the administrative record that justifies the rejection of the reduced density alternative is not substantial without such a statement from the developer.” Although technically, this is not a final ruling because the court anticipated further hearing, our review is de novo, which means that we independently review the administrative record, and so the trial court’s conclusions are not binding on this court. (Long Beach, supra, 176 Cal.App.4th at p. 897.)
Song contends that the City’s rejection of this alternative as economically infeasible “flies in the face of Guidelines section 15126.6[, subdivision] (b), ” which requires the alternatives discussion to focus on alternatives “ ‘which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly.’ ” (Italics omitted.) But, this guideline simply sets forth criteria for determining what alternatives to discuss. It does not require specific content of the analysis.
Guidelines section 15126.6, subdivision (b) reads in part: “Because an EIR must identify ways to mitigate or avoid the significant effects that a project may have on the environment [citation], the discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly.”
However, we are persuaded by Song’s alternative argument based on Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167 (Goleta Valley). Song argues that evidence of economic infeasibility must be specific and concrete. No such evidence is contained in this FEIR. Goleta Valley held the FEIR’s analysis of an alternative to the project to construct a beachfront resort hotel failed to contain substantial evidence to support the finding the alternative was economically infeasible. (Id. at p. 1180.) The court there observed that, without comparative data and analysis, no meaningful conclusions could be drawn. (Id. at pp. 1180-1181.) The Goleta Valley court elucidated, “CEQA defines ‘feasible’ as ‘capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.’ (Pub. Resources Code, § 21061.1.) The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project. The scant figures contained in the administrative record are not sufficient to support such a conclusion.” (Id. at p. 1181, italics added.)
Here, the FEIR does not claim that this alternative is “economically infeasible;” it found that the reduced density alternative was not “economically sustainable” and did not meet many of the project objectives. On that basis, the FEIR found the alternative was not “preferable to the proposed project.” We perceive no significant legal difference between “infeasible” and “sustainable” in this context. Still, the FEIR’s discussion of the reduced-density alternative is insufficient.
The draft EIR refers to average employment density factors for the SCAG region, and discusses the population, employment, and housing trends and projections in the City at section 3.2, and provides tables outlining employment as well as population, household, and jobs projections for the City from 2005 to 2030, along with a five-page table summarizing the relative impacts of the project and the alternatives. However, the discussion lacks any “comparative data and analysis” (Goleta Valley, supra, 197 Cal.App.3d at pp. 1180-1181) between the project with the big-box retailer and gas station/car wash on the one hand, and the scaled-down version in the reduced density alternative on the other hand. Indeed, there is no evidence of profitability or sustainability of the reduced density alternative from which to draw any meaningful conclusions about whether the reduced density alternative would be less profitable or unsustainable. (Id. at p. 1181.) As the trial court noted, the record lacks any indication that the developer would not build the project absent a big-box retailer. The lack of facts and data renders the discussion of the reduced density alternative useless as an informational document.
This is not to say, as Song contends, that the City should have selected one of these two alternatives over the project itself. Courts do not “ ‘pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’ [Citation.]” (Laurel Heights I, supra, 47 Cal.3d at p. 392.) Here, we simply conclude that the FEIR is insufficient as an informative document because it lacks the requisite evidence and findings required by Government Code section 65863, and its analysis of the reduced density alternative contains no factual underpinning. Therefore, the City prejudicially abused its discretion by failing to proceed in a manner required by CEQA because these conclusions are unsupported by substantial evidence.
DISPOSITION
The judgment is reversed. Each party to bear it’s own costs.
We concur: KLEIN, P. J.KITCHING, J.