February 28, 1991 - From the February, 1991 issue

The Goleta II Decision: California’s Supreme Court Creates New Test for EIR Alternative Site Analysis

On the last day of 1990, the California Supreme Court reaffirmed that a rule of reason was the proper standard to analyze the adequacy of project alternatives in an environ­mental impact report (EIR).

In Citizens of Goleta Valley v. Board of Supervisors, 91 Daily Jour­nal D.A.R. 129 (“Goleta II”), the Supreme Court overruled a prior Court of Appeal decision which held that an EIR was deficient for failing to ana­lyze all “ostensibly feasible” alterna­tive sites. In reaffirming the rule of reason, this case should provide greater certainty for governmental agencies, consultants, lawyers, and others involved in the environmental review process.

Dale J. Goldsmith, a land use and real estate attorney with the law firm of Alschuler, Grossman & Pines, also presents the history of Goleta decisions, how the ruling of Goleta II came to be, and the project approval landscape after the ruling of Goleta II. 

The Goleta History 

The Supreme Court’s decision in Goleta II is the culmination of a lengthy effort by a developer to build a resort hotel on beachfront property in Santa Barbara County (“County”). In Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167 (“Goleta I”) the Court of Appeal invalidated the EIR for the project because it failed to consider an alternative site. 

In reaching this result, the Court of Appeal rejected the County’s argu­ment that the EIR did not need to analyze alternative sites because the project proponent did not own any other property in the area. In response to Goleta I, the County prepared and certified a supplemental EIR which considered only one alternative site for the project. 

Opponents of the project brought a lawsuit to invalidate theEIR because it failed to consider seven specific additional sites suggested by project opponents. The Court of Appeal in 

Goleta II agreed, holding that the EIR was inadequate for failure to discuss the County’s reasons for rejecting “ostensibly feasible” alternative sites. 

The Court of Appeal held that even sites outside the County’s jurisdiction or inconsistent with land use designations under the adopted general plan or local coastal program (LCP) could be considered “ostensi­bly feasible.” The Court of Appeal’s decision caused considerable con­sternation among preparers of EIR’s, because there could be an unlimited number of “ostensibly feasible” alternative sites for virtually every project. 

A Rule of Reason 

In Goleta II, the Supreme Court rejected the reasoning of the Court of Appeal and affirmed prior case law which held that the adequacy of alter­natives in EIR’s must be judged against a rule of reason. The Supreme Court held that only those project alternatives which may be “feasibly accomplished in a successful manner, considering the economic, environ­mental, social, and technological fac­tors involved, need be considered.” 

In applying a rule of reason to the facts of the case, the Supreme Court found that the County did not err in failing to consider in the EIR the alternative sites suggested by project opponents. 

According to the administrative record, the County had rejected all of these sites because (a) the LCP des­ignated the sites for land uses which would be inconsistent with the de­velopment of the major resort ho­tel, (b) the developer did not own the sites, and (c) one of the sites was located outside the County’s jurisdic­tion. 

The project opponents argued that the EIR should have identified and reviewed alternative sites which could physically accommodate a major new resort hotel, regardless of whether the alternatives could feasibly be devel­oped by the project opponent, or even approved by the County. 

The Supreme Court held that the EIR need not concentrate on broad ­based regional planning concerns such as identifying optimum locations for new commercial development. These regional land use considerations were more properly the subject of the general plan or LCP, and the County had already undertaken a study of environmental suitability of alterna­tive sites for commercial development, a study whose findings were embodied in the LCP.

Therefore, the County properly relied on the LCP to help it assess the feasibility of potential project alternatives and reject alternative sites which, under the LCP, had land use designations inconsistent with the development of a major resort hotel.

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The Supreme Court stated that the California Environmental Quality Act (CEQA) does not require an in-depth review of alternatives which cannot be realistically considered and successfully accomplished. Thus, the Supreme Court held that the County could properly find that property located outside of its jurisdiction was not a feasible project alternative.

Similarly, it was proper to consider whether the property proposed for an alternative site is owned or can reasonably be acquired by the project proponent, because such factors have a strong bearing on a project’s ultimate cost and chances for an expeditious and successful accomplishment.

The Goleta II ruling appears to suggest that EIR’s for private projects may not need to consider alternative sites if the project proponent does not own other property which can accommodate the proposed project. However, the Supreme Court stated that consideration of alternative sites would be necessary where (a) the private developer owns or controls feasible alternative sites or has the ability to purchase, lease, or otherwise gain access to such sites; (b) two or more private developers are seeking approval from a local agency for the same type of development at different locations; or (c) “other circumstances” necessitate review of alternative sites. The Supreme Court did not provide any guidance as to what these “other circumstances” might be.

Life After Goleta II

After Goleta II, EIR’s for private projects might not need to analyze alternative sites. However, there is a risk that the court could find an EIR deficient for failing to analyze alternative sites because “other circumstances” necessitated such analysis.

Because the Supreme Court cautioned that there is “no iron clad rule governing the nature or scope of the alternatives to be discussed in an EIR, other than the rule of reason,” it would still be most prudent to analyze at least one altnerative site in such EIR’s. In addition, any alternative sites which have been rejected by the lead agency as part of the EIR scoping process should be at least briefly discussed in the EIR, along with the reasons for rejecting such sites.

If a specific alternative site is proposed at a public hearing after the EIR is completed, the administrative record should be supplemented with evidence indicating why the site was rejected. 

Based on the facts of Goleta II, such evidence might include an economic analysis showing that the rejected alternative site could not be reasonably acquired by the project proponent, that the site is inconsistent with the applicable general plan or other land use regulations, or that the site is outside the jurisdiction of the decision-maker.

In reaffirming the rule of reason as the standard for analyzing the adequacy of alternatives in EIR’s, the Supreme Court has cleared up the uncertainty generated by the Court of Appeal.

In the future, courts are likely to show a greater deference to the determinations of local agencies as to which, if any, alternative sites need be analyzed in an EIR. 

Provided that local agencies act reasonably and include sufficient information to support their decisions, the Goleta II decisions should make it much more difficult for project opponents to challenge successfully the validity of EIR’s based on the adequacy of the alternatives analysis.

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