A city may determine that project alternatives once considered potentially feasible for California Environmental Quality Act analysis are infeasible as actual projects, the Sixth District Court of Appeal has ruled.

"The issue of feasibility arises at two different junctures: (1) in the assessment of alternatives in the EIR and (2) during the agency's later consideration of whether to approve the project. But ‘differing factors come into play at each stage,'" wrote Justice Richard McAdams, citing Stephen Kostka and Michael Zischke's Practice under the California Environmental Quality Act.

"For the first phase -- inclusion in the EIR -- the standard is whether the alternative is potentially feasible. By contrast, at the second phase -- the final decision on project approval --  the decision-making body evaluates whether the alternatives are actually feasible. At that juncture, the decision-makers may reject as infeasible alternatives that were identified in the EIR as potentially feasible."
The ruling could chill a frequent argument used by opponents of a project. Because CEQA requires an analysis of feasible alternatives, goes the argument, an EIR is necessarily inadequate if a decision-making agency later rejects the alternatives as infeasible. This was roughly the argument in the case decided by the Sixth District.
At issue was a park plan in Santa Cruz. In 1979, city voters approved a ballot measure identifying greenbelt parcels for preservation. Among the parcels was Arana Gulch, which was privately owned property near Santa Cruz Harbor. In 1992, voters approved a measure requiring preparation of a greenbelt master plan. By 1994, the city had acquired the entire 67.7-acre Arana Gulch site, and in 1997 the city approved an interim master plan for it.
The city's general plan and the greenbelt master plan called for construction of a multi-use path that would run through Arana Gulch and over harbor property to connect two parts of town. The path was one objective in a 2003 Arana Gulch master plan. Another was preservation and restoration of coastal prairie habitat, particularly Santa Cruz tarplant populations.
The draft Arana Gulch plan called for 1.4 miles of pedestrian-only path, plus 0.6 miles wider, paved path that would comply with the Americans with Disabilities Act (ADA) and be suitable for pedestrians, bicycles and wheelchairs. Also planned were educational displays and viewing areas. Environmentalists objected that the proposed paths would intrude upon tarplant habitat; they urged the city to build the multi-use path around Arana Gulch. In 2006, the City Council approved the draft Arana Gulch plan and certified the EIR.
The California Native Plant Society and Friends of Arana Gulch sued to block the project, primarily challenging the city's analysis of the alternatives. Santa Cruz County Superior Court Judge Paul Burdick ruled for the city.
The EIR contained four alternatives: (1) no project; (2) no ADA-compliant path on harbor property, meaning no continuous east-west route; (3) no paved paths; and (4) no paved paths and no bridge over a gulch, again meaning no east-west connection. Although each alternative lessened or eliminated impacts to tarplant habitat, the City Council rejected all four as infeasible and chose the draft plan because the east-west connector was crucial. The council adopted a statement of overriding that declared that the project's social and transportation benefits outweighed the harm to tarplant habitat.
In their appeal, opponents of the project contended that the four alternatives promoted the multi-use path at the expense of ecosystem restoration. If an ADA-compliant path was a prime objective, the city should have added the alternative of routing the path around Arana Gulch, they argued.
But the court pointed out that the project was a master plan for Arana Gulch, not for a multi-use path. In addition, earlier plans and EIRs had rejected the idea of a multi-use path around Arana Gulch. Every alternative chosen for and analyzed in the Arana Gulch plan's EIR met at least some of the project's 10 objectives, and "Contrary to appellants' assertion," wrote McAdams. "there is no legal requirement that the alternatives selected must satisfy every key objective of the project."
The argument in Santa Cruz, summarized McAdams, was really over policy, not environmental analysis. "Here, the city's infeasibility findings … are based on policy considerations, particularly the city's interest in promoting transportation alternatives, as well as its open space for persons with disabilities. Such policy considerations are permissible under the relevant statute, which calls for a determination that ‘economic, legal, social, technological or other considerations … make infeasible the mitigation measures or alternatives identified in the environmental impact report,'" McAdams wrote, citing Public Resources Code § 21081, subdivision (a)(3).
In a concurring opinion, Justice Nathan Mihara added, "There is no inconsistency between the city's certification of an EIR that discussed potentially feasible alternatives and the city's determination that those alternatives are not actually feasible."
The Case:
California Native Plant Society v. City of Santa Cruz, No. H032502, 2009 DJDAR 13873. Filed August 20, 2009. Ordered published September 18, 2009.
The Lawyers:
For California Native Plant Society: William Parkin, Wittwer & Parkin, (831) 429-4055.
For the city: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745.