1

Filed 3/30/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SAVE THE HILL GROUP,

Plaintiff and Appellant,

v.

CITY OF LIVERMORE,

Defendant and Respondent;

LAFFERTY COMMUNITIES, INC.,

Real Party in Interest and 

Respondent.

 A161573

 (Alameda County

 Super. Ct. No. RG19020186)

This appeal is from a superior court judgment denying a petition for 

writ of mandate filed by appellant, Save the Hill Group (Save the Hill), a 

private group of concerned residents, against respondents, developer and real 

party in interest, Lafferty Communities, Inc. (Lafferty),

1 and the City of 

Livermore (City). Save the Hill seeks to have set aside the City’s decisions to 

approve a residential housing development project known as the Garaventa 

Hills Project (the Project) and to certify a reissued final environmental 

impact report (RFEIR) under the California Environmental Quality Act 

(CEQA) (Pub. Resources Code, § 2100 et seq.).2

1 Lafferty was formerly known as Livermore LT Venture I Group, LLC.

2 Unless otherwise stated, all statutory citations herein are to the 

Public Resources Code. Subsequent references to “Guidelines” are to the 
2

For reasons that follow, we conclude Save the Hill has raised a 

challenge to the adequacy of the RFEIR’s analysis of the “no project”

alternative that is both preserved for appeal and meritorious. The RFEIR’s

certification and the Project’s approval therefore cannot stand. Accordingly, 

we reverse and remand to the superior court for further proceedings 

consistent with the opinion set forth post.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Project and Project Site.

On July 27, 2011, Lafferty submitted a development application for 76 

homes on a 31.7-acre project site in the Garaventa Hills that is the last 

remaining undeveloped area in that section of the City of Livermore

(hereinafter, Project Site). The initial proposed development included a 

looped roadway system and a two-way vehicular and pedestrian connector 

bridge over Altamont Creek, which crosses the Project Site. On 

November 16, 2011, the City issued a notice of preparation of a draft 

environmental impact report (DEIR), which was published a year later, in 

November 2012.

The DEIR described the Project Site, known as Garaventa Hills, as

“moderately steeply sloping” with two prominent knolls at the center and an 

intermittent stream channel, Altamont Creek, at the southern boundary. 

Garaventa Hills consists of predominately non-native grassland habitat. 

West of the Project Site is the 24-acre Garaventa Wetlands Preserve, owned 

and managed by the Livermore Area Recreation and Park District (LARPD). 

The Project Site, together with the Garaventa Wetlands Preserve, provides 

habitat for a variety of special-status species protected under the California 

CEQA guidelines found in California Code of Regulations, title 14, section 

15000 et seq.
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Endangered Species Act and/or the federal Endangered Species Act. These 

species include the California red-legged frog, California tiger salamander, 

California burrowing owl, San Joaquin kit fox, western spadefoot toad, vernal 

pool fairy shrimp, Livermore tarplant, palmate-bracted bird’s beak, and 

Congdon’s tarplant.

The area of the Garaventa Hills and Wetlands Preserve is 

hydrologically connected to the Springtown Alkali Sink, a unique alkaline 

wetlands area owned and managed by the Wetlands Exchange in cooperation 

with the City, the California Department of Fish and Wildlife (CDFW), and 

the U.S. Fish and Wildlife Service (USFWS). The DEIR recognized that any 

alterations to existing drainage patterns in the Garaventa Hills may affect 

the quantity, timing and quality of precipitation that enters these wetlands 

and which is needed to maintain a functioning ecosystem.

When comments on the DEIR were solicited from the public, it became 

clear there was considerable opposition to Lafferty’s original proposal. 

Lafferty therefore altered course and proposed a more modest project that

reduced the number of residential units from 76 to 47, eliminated the

vehicular bridge, and preserved a large rock outcropping. The City then 

released a final environmental impact report (FEIR) in June 2014.

On July 1, 2014, the City’s planning commission recommended that the 

city council reject Lafferty’s second proposal due to concerns about grading, 

aesthetics and comments by the LARPD regarding compatibility with the

Garaventa Wetlands Preserve. The city council agreed and, on 

September 14, 2015, declined to certified the FEIR or approve Lafferty’s

second proposed project.

Lafferty, therefore, returned to the drawing board and, on September 8, 

2017, submitted a revised application. This smaller-scale project consisted of
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44 new residences, and a pedestrian bridge across Altamont Creek that 

would also serve as a secondary emergency vehicle access (EVA) road. In 

August 2018, the City published the RFEIR. According to the RFEIR, the 

project would result in the permanent removal of 31.78 acres of grasslands 

with an additional 1.18 acres being temporarily disturbed for construction of 

the pedestrian bridge and EVA road. To address these and other 

environmental impacts, various mitigation measures were proposed, 

including acquisition of an 85-acre compensatory mitigation site (the Bluebell

site) located in the Springtown Alkali Sink.

II. The Approval and RFEIR Certification Process.

On August 23, 2018, the City held a neighborhood meeting to discuss

the revised Project. On December 4, 2018, the planning commission then 

conducted a public hearing to consider the RFEIR. Afterward, the planning 

commission unanimously agreed to recommend that the city council approve 

the RFEIR with a few changes, including a reduction in the number of 

proposed residences from 47 to 44.

On April 22, 2019, the city council held a public hearing on the RFEIR

with the planning commission’s proposed changes. After the planning 

commission presented the RFEIR and numerous citizens, including 

representatives of Save the Hill, commented on it, the city council adopted a 

resolution certifying the RFEIR and approving the Project that is now before 

us. The following day, the City filed its notice of determination.

III. The Petition.

On May 23, 2019, Save the Hill filed a petition for writ of mandate 

(petition) asserting causes of action for, among other things, failure to 

consider significant environmental impacts, to adequately investigate and 

evaluate the no-project alternative to the Project, and to mitigate significant 
5

environmental impacts. Save the Hill asked the superior court to set aside 

and vacate the Project’s approval and certification of the RFEIR and to order 

the City to prepare a legally adequate environmental impact report (EIR). 

The administrative record was lodged on September 5, 2019, and a hearing 

was set for January 10, 2020.

IV. The Superior Court’s Order.

On January 16, 2020, the superior court issued a tentative order 

finding the RFEIR’s determination of infeasibility for the no-project 

alternative inadequate because it failed to disclose and evaluate the 

possibility of using existing mitigation funding to make the no-project 

alternative feasible. The court then asked for supplemental briefing on the 

issue whether Save the Hill exhausted its administrative remedies in 

challenging the RFEIR as inadequate on this basis.

On April 20, 2020, the superior court issued its final order denying 

Save the Hill’s petition. Judgment was entered in respondents’ favor on 

September 23, 2020. This appeal followed.

DISCUSSION

Save the Hill contends the superior court erred by finding that it failed 

to exhaust administrative remedies before raising a legal challenge to the 

adequacy of the RFEIR’s evaluation of the possibility of having no project as a 

reasonable alternative to the Project. Additionally, Save the Hill contends 

the City violated CEQA by certifying an RFEIR that failed to: (1) adequately

evaluate the no-project alternative; (2) adequately evaluate or mitigate the 

Project’s environmental impacts on the threatened vernal pool fairy shrimp

and the hydrologically significant Springtown Alkali Sink; (3) identify 

appropriate compensatory mitigation for the permanent loss of about 32 acres 

of seasonal wetlands; and (4) evaluate the possibility of preserving Garaventa 
6

Hills as a means to meet the City’s unrelated contractual obligations to 

acquire environmentally significant properties to mitigate the environmental 

harms of other projects. We begin with the relevant law.

I. The CEQA Framework.

The Legislature intended CEQA “ ‘ “to be interpreted in such manner 

as to afford the fullest possible protection to the environment within the 

reasonable scope of the statutory language.” ’ ” (Sierra Club v. County of 

Fresno (2018) 6 Cal.5th 502, 511 (Sierra Club).) “ ‘ “[T]he purpose of CEQA is

to protect and maintain California’s environmental quality. With certain

exceptions, CEQA requires public agencies to prepare an EIR for any project

they intend to carry out or approve whenever it can be fairly argued on the

basis of substantial evidence that the project may have a significant

environmental effect . . . .” [Citation.] The California Supreme Court has

“repeatedly recognized that the EIR is the ‘heart of CEQA.’ [Citations.] ‘Its

purpose is to inform the public and its responsible officials of the

environmental consequences of their decisions before they are made. Thus,

the EIR “protects not only the environment but also informed selfgovernment.” ’ ” ’ ([Citation], quoting Laurel Heights Improvement Assn. v.

Regents of University of California (1993) 6 Cal.4th 1112, 1123 [26

Cal.Rptr.2d 231, 864 P.2d 502].)” (California Clean Energy Committee v. City

of Woodland (2014) 225 Cal.App.4th 173, 186 (California Clean Energy).)

An EIR is “an informational document” designed “to provide public 

agencies and the public in general with detailed information about the effect 

which a proposed project is likely to have on the environment; to list ways in 

which the significant effects of such a project might be minimized; and to 

indicate alternatives to such a project.” (§ 21061, 2d par.; Guidelines, 

§ 15003, subds. (b)–(e).) “ ‘Because the EIR must be certified or rejected by 
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public officials, it is a document of accountability.’ ” (Sierra Club, supra, 6 

Cal.5th at p. 512.) The general public, “ ‘being duly informed, can respond 

accordingly to action with which it disagrees.’ ” (Ibid.)

An interested party may enforce a public agency’s compliance with 

CEQA by petitioning the superior court for issuance of a writ of mandate. 

(Pub. Resources Code, §§ 21168.9, subd. (b), 21177; Code Civ. Proc., § 1086 

[for standing to seek writ of mandate, party must be “beneficially interested” 

in the litigation’s subject matter].) “An appellate court’s review of the

administrative record for legal error and substantial evidence in a CEQA case

. . . is the same as the trial court’s: [We] review[] the agency’s action, not the

trial court’s decision; in that sense appellate judicial review under CEQA is

de novo.’ [Citations.] We therefore resolve the substantive CEQA issues on

which we granted review by independently determining whether the

administrative record demonstrates any legal error by the [agency] and

whether it contains substantial evidence to support the [agency’s] factual

determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City

of Rancho Cordova (2007) 40 Cal.4th 412, 427.) “ ‘[A]n 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.’ ” (Banning Ranch Conservancy v. City of Newport Beach (2017) 2

Cal.5th 918, 935 (Banning).)

“ ‘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. In reviewing for substantial evidence, the 

reviewing court “may not set aside an agency’s approval of an EIR on the 
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ground that an opposite conclusion would have been equally or more 

reasonable,” for, on factual questions, our task “is not to weigh conflicting 

evidence and determine who has the better argument.” ’ ” (Sierra Club, 

supra, 6 Cal.5th at p. 512.) “The ultimate inquiry, as case law and the CEQA

guidelines make clear, is whether the EIR includes enough detail ‘to enable

those who did not participate in its preparation to understand and to consider

meaningfully the issues raised by the proposed project.’ ” (Id. at p. 516.) This

inquiry is generally a mixed question of law and fact subject to de novo

review, but to the extent factual questions predominate, a substantial

evidence review applies. (Ibid.)

II. The superior court erred in finding Save the Hill failed to 

exhaust its administrative remedies before challenging the

no-project alternative analysis.

The superior court rejected Save the Hill’s challenge to the adequacy of 

the no-project alternative analysis on the procedural ground of failure to 

exhaust administrative remedies. Specifically, the court found that while 

Save the Hill representatives “express[ed] their desires that the site be 

preserved as open space,” they did not mention the environmental documents 

or express concern that the City insufficiently studied project alternatives. 

As discussed post, CEQA does not require public interest groups such as Save 

the Hill, which often are unrepresented by counsel at administrative 

hearings, to do more than fairly apprise the agency of their complaints in 

order to preserve them for appeal.

When preparing an EIR, CEQA “ ‘requires the public agency to consider

feasible alternatives to the project which would lessen any significant adverse

environmental impact. (§§ 21002, 21081; [citation].) One alternative is “no

project.” (See Guidelines, § 15126, subd. (d)(2) [“no project” alternative to be

considered along with proposed project’s environmental impact]; [citation].)’
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[Citation.]” (Planning & Conservation League v. Department of Water

Resources (2000) 83 Cal.App.4th 892, 911 (Planning & Conservation League).)

Here, Save the Hill contends the RFEIR’s evaluation of the no-project

alternative was deficient. The superior court agreed but, nonetheless, found

Save the Hill forfeited the right to challenge the no-project alternative 

evaluation by failing to raise a proper objection during the administrative 

process. We review the court’s finding de novo. (Clews Land & 

Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 185.) The 

following rules apply.

“ ‘In order to attack a decision that is subject to CEQA, the alleged

grounds for noncompliance must have been presented to the public agency,

and the person attacking the decision must have raised some objection during

the administrative proceedings. (§ 21177, subds. (a), (b).)’ [Citation.]

Although an issue must first have been raised during the administrative

process to be preserved for judicial review, it may be argued in court by a

different person. [Citation.]” (California Clean Energy, supra, 225 

Cal.App.4th at p. 191.) “ ‘[T]he objections must be sufficiently specific so that 

the agency has the opportunity to evaluate and respond to them.’ [Citation.] 

This requirement is known as the exhaustion doctrine. [Citation.] The

rationale behind this rule is that the public agency should have the

opportunity to receive and respond to articulated factual issues and legal

theories before its actions are subjected to judicial review. [Citation.]” 

(Porterville Citizens for Responsible Hillside Development v. City of Porterville

(2007) 157 Cal.App.4th 885, 909–910 (Porterville Citizens).)

Generally speaking, “ ‘ “ ‘bland and general references to environmental 

matters’ ” ’ ” or “ ‘ “ ‘isolated and unelaborated’ ” ’ ” comments do not satisfy 

the exhaustion requirement; rather, the “ ‘ “ ‘exact issue’ ” ’ ” must have been
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presented to the agency. (E.g., North Coast Rivers Alliance v. Marin

Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623, 631

[plaintiff failed to exhaust administrative remedies where its letters during

the administrative process failed to apprise the agency of any specific

inconsistencies with the plan’s policies or programs]; South of Market

Community Action Network v. City and County of San Francisco (2019) 33

Cal.App.5th 321, 347 (South of Market Community Action) [plaintiffs’

remarks during the public comment period that reflected “general concerns

about the amount of wind generated by the 5M Project, ‘wind tunnel’ effects,

and requests for mitigation measures” were “insufficient to raise the specific

issues [they] assert[ed] on appeal”].) At the same time, courts have

acknowledged less specificity is required to preserve an issue for appeal in an 

administrative proceeding than in a court proceeding because parties are not 

generally represented by counsel before administrative bodies: “ ‘ “ ‘To hold 

such parties to knowledge of the technical rules of evidence and to the 

penalty of waiver for failure to make a timely and specific objection would be 

unfair to them.’ ” ’ ” (Santa Clarita Organization for Planning the 

Environment v. City of Santa Clarita (2011) 197 Cal.App.4th 1042, 1051; see

Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 

Cal.App.4th 210, 251 (Castaic Lake) [to satisfy exhaustion doctrine,

petitioner’s objections need only “ ‘fairly apprise[]’ ” the agency of the EIR’s

purported defect].)

We conclude on this record Save the Hill’s objections during the 

administrative process met this standard of fairly apprising the City of the 

RFEIR’s failure to adequately flesh out the feasibility of not going forward 

with the Project. For example, during the public comment period, Carolyn 

Morgan wrote the City to express concern for “the destruction of habitat 
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when the hill is bulldozed to make suitable building pads” and to ask whether 

Lafferty owned other land in the City “more suitable for building.” Morgan 

then queried whether “[Lafferty] could sell the development credits to 

another builder in a more suitable area” so that “the habitat would be saved 

of [sic] forever.” In RFEIR comment H-2, the City responded by specifically 

directing Morgan to the no-project/no-development alternative evaluation, 

which indicated the Project Site is zoned for residential development and that 

the Project’s habitat-loss impact would be mitigated to insignificant levels.

In addition, during the April 22, 2019 city council meeting at which the 

RFEIR was presented for certification, several Save the Hill representatives 

objected to the Project and voiced support for the alternative of preserving 

the Project Site as open space in perpetuity. For example, Michelle Mitchell 

asked, “ ‘Is it possible that during [a future] General Plan reevaluation the 

City can take the time to look once again to rezoning this property so that it 

might remain open space? Given the City’s history of preserving open space 

and hillsides, the City’s current General Plan, and the City’s work with the 

Altamont Landfill Open Space committee on [a] recommended list of priority 

areas for future acquisition and [its work with] eastern Alameda County, I’d 

like to request that the City consider working with other local agencies [and] 

the Save the Hill Group to secure funding from the Altamont Landfill Open 

Space Committee and partnering with [a] local park district or districts to 

preserve this area as open space.”

Another Save the Hill representative, Michaela Morrow, then pointed

to the RFEIR’s report that roughly 32 acres of sensitive habitat would be 

permanently destroyed and asked the city council, instead, to protect the land 

as open space in accordance with the general plan. Save the Hill 

representative Bianca Covarelli, in turn, told the city council that funds were 
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available for buying and preserving Garaventa Hills as open space and 

“ ‘we’re working on collaborating with finding a buyer for this unique 

beautiful space to maintain open space.’ ” Covarelli also reiterated, “This is 

an environmentally and ecologically sensitive, very unique, hill that should 

be honored and left intact as pristine, maintained open space. . . . Our goal 

from Save the Hill Group is to maintain this unique open space . . . .”

In response to these comments, several city council members raised 

questions to the planning commission regarding the possibility of preserving 

the Project Site as open space. Councilmember Bob Woerner acknowledged 

the community’s desire not to have the Project and asked whether the City 

could buy the land itself and just “ ‘ “make this all go away . . . .” ’ ” In 

response, Assistant City Attorney Catrina Fobian advised him that zoning 

rules could not be changed at that point and that he should limit his

“ ‘evaluat[ion] [to] the project that is set before you—not look at the 

possibility of what the City could do with the property as we’re currently not

under contract to purchase that property; Lafferty Communities is under 

contract to purchase that property. So that would be a separate course of 

action, apart from your determination as to what to do with this proposal 

before you this evening.’ ”

In the same vein, Mayor John Marchand asked whether anyone had 

made an offer to buy Garaventa Hill and whether there were funds available, 

specifically “the Altamont Open Space funds,” to conserve the Project Site. 

Planning Manager Steve Stewart responded that these funds were subject to

“specific requirements” and were “tied to sites with significant native . . .

biological diversity and also for non-motorized uses.” Mayor Marchand also 

asked, “ ‘If we did change the zoning to be permanent open space and decided 

that there could be no development on this property, that constitutes a 
13

taking?’ ” City Attorney Jason Alcala responded, “ ‘Yes; if the Council were to 

take that action, you would be faced with the likelihood of a takings 

lawsuit.’ ”

3 Taking this counsel to heart, Councilmember Woerner lamented,

before voting to certify the RFEIR, “There is no way under the rules that we 

have to work under to get to zero. . . . This is [the] best we can do. We don’t 

have a lot of latitude . . . .”

These discussions show the city council was very much focused, at Save 

the Hill’s prompting, on the feasibility of a no-project alternative. While the

superior court discounted them for not specifically referring to the RFEIR’s

project alternatives evaluation, we conclude they sufficed to fairly apprise the

City of its position. (See Castaic Lake, supra, 180 Cal.App.4th at p. 251; Save 

Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 

1745, 1750 [“SORE’s objections to the Project, while not identifying the 

precise legal inadequacy upon which the trial court’s ruling ultimately rested, 

fairly apprised [the agency] that SORE believed the environmental impacts of 

developing the Project . . . would be deleterious to the surrounding 

community”].)

Moreover, “the doctrine of exhaustion of administrative remedies has

not hardened into inflexible dogma. [Citation.] It contains its own

exceptions, as when the subject matter of the controversy lies outside the

administrative agency’s jurisdiction [citation], when pursuit of an

administrative remedy would result in irreparable harm [citations], when the

administrative agency cannot grant an adequate remedy [citations], and

when the aggrieved party can positively state what the administrative

3 As discussed post (pp. 19–21), the representations by the City’s 

attorneys that it would be illegal for the City to attempt to rezone and 

purchase the Project Site for conservation were not included, much less 

explained, in the RFEIR.
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agency’s decision in his particular case would be. ([Citation.] See also

Exhaustion of Administrative Remedies in California, 56 Cal.L.Rev. 1061, 

1068–1081.)” (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830,

834.)

The last mentioned exception applies here. The record is replete with 

incidences of Save the Hill representatives urging councilmembers to 

consider the possibility of obtaining funding to purchase and conserve the 

Project Site. While Save the Hill did not frame its urging in the language of 

the RFEIR’s no-project alternative, the evidence is overwhelming that, had it

done so, the result would have been the same: The City would have rejected 

the group’s proposal and certified the RFEIR. As described, when 

councilmembers broached the possibility of obtaining such funding to 

purchase and conserve Garaventa Hills, they were advised by staff and 

attorneys that it was too late and would expose the City to liability under the 

takings clause. They were also instructed to limit their focus to the Project in 

front of them—even though CEQA required them to focus on both the Project 

and feasible alternatives, including the no-project alternative.

On this record, we may conclude the City had no intention to consider 

the alternative of not having the Project go forward. (See Ogo Associates v.

City of Torrance, supra, 37 Cal.App.3d at p. 834.) Accordingly, we decline to 

apply the exhaustion of remedies doctrine as a bar to Save the Hill’s noproject challenge.

III. The no-project alternative analysis is inadequate.

We thus turn to the merits of Save the Hill’s claim that the RFEIR’s noproject alternative discussion was inadequate, as it failed to disclose and 

analyze information regarding the availability of funding sources that could 
15

have been used to purchase and permanently conserve the Project Site. The 

following standards apply.

“CEQA requires that the no project alternative discussed in an EIR 

address ‘existing conditions’ as well as ‘what would be reasonably expected to 

occur in the foreseeable future if the project were not approved, based on 

current plans and consistent with available infrastructure and community 

services.’ (Guidelines, former § 15126, subd. (d)(4), now § 15126.6, subd. 

(e)(2).) The existing conditions, supplemented by a reasonable forecast, are 

characterized as the no project alternative. The description must be 

straightforward and intelligible, assisting the decision maker and the public 

in ascertaining the environmental consequences of doing nothing.” 

(Planning & Conservation League, supra, 83 Cal.App.4th at p. 911; see Center

for Biological Diversity v. Department of Fish & Wildlife (2015) 234

Cal.App.4th 214, 253.) Moreover, the discussion “must contain sufficient

detail to help ensure the integrity of the process of decisionmaking by

precluding stubborn problems or serious criticism from being swept under the

rug. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn.

(1986) 42 Cal.3d 929, 935 [citations]; [citation].) It must reflect the analytic

route the agency traveled from evidence to action. [Citation.] An EIR which

does not produce adequate information regarding alternatives cannot achieve

the dual purpose served by the EIR, which is to enable the reviewing agency

to make an informed decision and to make the decisionmaker’s reasoning

accessible to the public, thereby protecting informed self-government.

[Citation.]” (Kings County Farm Bureau v. City of Hanford (1990) 221

Cal.App.3d 692, 733; see South of Market Community Action, supra, 33

Cal.App.5th at p. 331 [“ ‘overriding issue’ ” is whether the agency

“ ‘ “reasonably and in good faith” ’ ” discussed the project in sufficient detail to
16

allow the public to discern from the EIR the agency’s analytic route from

evidence to action].)

Thus, to prove prejudicial error, the appellant must demonstrate “ ‘the

failure to include relevant information preclude[d] informed decisionmaking

and informed public participation, thereby thwarting the statutory goals of

the EIR process.’ [Citation.]” (Neighbors for Smart Rail v. Exposition Metro

Line Construction Authority (2013) 57 Cal.4th 439, 463.)

Here, the RFEIR identifies “No Project, No Development” as an

alternative that is environmentally superior to the Project itself because it

assumes the proposed Project is not approved and the site would remain in

an undeveloped state, with no development of roadways or residences. Yet

the RFEIR ultimately rejects the no-project alternative because: (1) it would

not meet the Project’s objectives of completing implementation of the

Maralisa Planned Development,

4 contributing to housing availability and

providing housing near employment centers; and (2) it is “not necessarily

feasible to assume the site would remain undeveloped in the long term”

because the Project Site is zoned for residential development and there is no

current proposal for the City or other agency to purchase or otherwise

preserve it.

As Save the Hill notes, there is no mention in this discussion about the

existence and feasibility of using available funding sources to purchase the 

Project Site and set aside Garaventa Hills for conservation rather than

development. Yet respondents concede the Project Site is eligible for 

4 In the 1990’s, development of Garaventa Hills was proposed as part of 

the Marlisa Planned Development, a project to construct hundreds of 

residences and a school north and south of Altamont Creek. However, 

Garaventa Hills was later removed from the Maralisa Planned Development

due to environmental and hydrological concerns.
17

conservation funding under two settlement agreements to which the City is a 

party: the Dougherty Valley Settlement Agreement (DVSA) and the 

Altamont Landfill Settlement Agreement (ALSA). The DVSA, deployed to 

mitigate environmental impacts from a large housing project, required the 

developer to pay several million dollars in fees into a settlement fund to be 

used by the City for acquisitions, including permanent trails, open space, or 

agricultural preservation easements, in two areas: (1) north of Interstate 580 

and east of Collier Canyon Road in Alameda County (which includes the 

Project Site); and (2) the Tassajara Valley area of Contra Costa County.

The DVSA also mandates with respect to open space acquisitions that 

priority be given to “purchases in areas containing unique vegetation and/or 

endangered species habitat.” Respondents do not dispute Garaventa Hills 

falls within both the geographic scope of the DVSA, as it sits squarely within 

the area north of Interstate 580 and east of Collier Canyon Road in Alameda 

County, and within the environmental scope of the DVSA, as the site

contains both unique vegetation and endangered species habitat. The City 

itself describes the Project Site as “the last undeveloped area within the City 

limits in the vicinity,” with “no additional development” assumed in its

immediate vicinity.

The ALSA, in turn, was executed to address environmental harm from 

the expansion of the Altamont Landfill. The record reflects that as of March 

2018, ALSA’s open space fund contained approximately $11.2 million 

earmarked for land acquisitions in designated areas that include the Project 

Site. To that end, the Altamont Landfill Open Space Committee (Open Space 

Committee) adopted and the city council approved a list of priority areas for 

future acquisitions with ALSA funds that include the Springtown Alkali Sink 
18

area, which arguably covers Garaventa Hills, upstream and hydrologically 

connected to the Sink.

And similar to the DVSA, the ALSA specifies that “first priority” should

be given to “acquisition of property having significant value for preservation 

of native biological diversity and/or wildlife habitat” and that “second 

priority” should be given to “acquisition of property having significant value 

for visual character and/or non-motorized recreation.” Respondents do not 

dispute Garaventa Hills meets both of these standards. However, they argue 

that conservation of Garaventa Hills would not be a reasonably foreseeable 

consequence of implementing the no-project alternative because the Project 

Site is already zoned for residential development and there is no known 

willing buyer.

We find weaknesses with these arguments. First, as the superior court 

noted when finding the RFEIR’s no-project alternative evaluation deficient, 

the Project Site’s zoning designation is not unalterable. Even our Supreme 

Court has recognized “the use of zoning to facilitate the availability of private 

recreational facilities to the residents of [a city] is within the scope of the 

city’s police power.” (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854,

881–882.) In fact, the record reflects that, before approving the Project at 

hand, the City recognized its power to change the zoning designation of a 65-

plus-acre parcel of environmentally sensitive property in the vicinity of

Garaventa Hills that was privately owned by the Anne and Jason Farber 

Foundation (Farber Property). Similar to the Project Site, the Farber 

Property was home to several special-status wildlife species, including vernal 

pool fairy shrimp, California tiger salamander, California red-legged frog and 

San Joaquin kit fox, that would have been impacted by development. In 
19

2011, using DVSA/ALSA funds, the City purchased the Farber Property in

order to permanently preserve it as open space.

In deciding to acquire the Farber Property, the City applied criteria 

developed by the Open Space Committee that prioritized preservation of 

native biological diversity and/or wildlife habitat (primary) and significant 

value for visual character and/or nonmotorized recreation (secondary). The 

Open Space Committee’s criteria also included the proposed acquisition’s

strategic value in land protection and the existence of additional funding 

sources and willing sellers. As to the Farber property’s strategic value, the 

City’s staff concluded in recommending acquisition: “The Zoning Designation

is Planned Development. Over the last decade and a half, the property has 

been under options with home-builders. The most recent development 

proposal for the property is for 145 residential units clustered to avoid the 

vernal pools and seasonal wetlands. The District’s acquisition would end 

development speculation on the property and preserve the property in 

perpetuity.” (Italics added.)

We agree with Save the Hill that the City’s acquisition of the Farber 

Property is noteworthy here, as it illuminates the lack of relevant 

information in the RFEIR’s no-project alternative evaluation regarding the 

feasibility of acquiring Garaventa Hills to conserve it as open space. 

Respondents’ arguments—that there is no evidence Garaventa Hills had a 

willing seller (like the Farber family) or had been targeted for acquisition 

with DVSA or ALSA funds—further illuminate this informational void. In 

this case, the City could not apply the criteria that it applied when acquiring 

the Farber Property because the relevant information was not in the RFEIR.

The RFEIR’s deficiencies on this issue were laid bare at the April 22, 

2019 city council meeting when several councilmembers asked for the very 
20

information about the feasibility of acquiring the Project Site for open space 

(including funding sources) that Save the Hill complains was omitted. (See 

ante, pp. 11–14.) Councilmembers should have been directed to specific 

information in the RFEIR, but there was none. Instead, they received

unsupported answers and warnings from the City’s attorneys that any 

attempt to acquire the Project Site could expose the City to liability under the 

takings clause. (See ante, pp. 11–14.)

This begs the question: If it is illegal or otherwise impossible for the 

City to acquire and conserve the Project Site, why does the RFEIR’s noproject alternative analysis fail to say so?

5

 As the California Supreme Court 

warns, “ ‘[f]ailure to disclose information called for by CEQA may be 

prejudicial “regardless of whether a different outcome would have resulted if 

the public agency had complied” with the law (§ 21005, subd. (a)).’ 

[Citation.]” (Banning, supra, 2 Cal.5th at p. 942; see Laurel Heights

Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 

376, 405 (Laurel Heights) [“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”].)

5 The City’s potential for liability under the takings clause is an issue

beyond the scope of this appeal. We note, however, the issue is not as

straightforward as respondents suggest. For one, the “general purpose of

zoning and planning is to regulate the use of land to promote the public

welfare, a power the courts have construed very broadly. Indeed, one of the

traditional uses of the police power lies in providing citizens adequate

recreational opportunities. (See, e.g., Associated Home Builders[, etc., Inc. v.

City of Walnut Creek (1971)] 4 Cal.3d 633, 638 [‘The elimination of open space

in California is a melancholy aspect of the unprecedented population increase

which has characterized our state in the last few decades. . . . 

[G]overnmental entities have the responsibility to provide park and 

recreation land to accommodate this human expansion . . . .’].)” (Ehrlich v.

City of Culver City, supra, 12 Cal.4th at pp. 881–882.)
21

Nor does the City’s potential exposure to liability excuse its duty to 

fulfill CEQA’s informational mandate. (Planning & Conservation League, 

supra, 83 Cal.App.4th at p. 913 [“the threat of litigation cannot be allowed to 

derail environmental review”].) Lafferty has never had the absolute right as

owner to develop Garaventa Hills. Rather, Lafferty’s plan has always been 

contingent on obtaining certification of a legally adequate EIR. (See Laurel 

Heights, supra, 47 Cal.3d at p. 425 [refusing to “countenance any attempt to 

reject an alternative on the ground that the Laurel Heights site has already 

been purchased or that activities there have already commenced,” as it 

“would be untenable for [defendants] to rely on the result of their own 

noncompliance as a basis for determining their future action”].) As the 

Guidelines make clear, an EIR “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.” 

(Guidelines, § 15126.6, subd. (b), italics added.)

Finally, we acknowledge many unknown variables exist regarding the 

feasibility of acquiring Garaventa Hills. However, “[d]rafting an EIR . . .

involves some degree of forecasting. While foreseeing the unforeseeable is 

not possible, an agency [nonetheless] must use its best efforts to find out and 

disclose all that it reasonably can.” (Guidelines, § 15144.) The fact that two 

funding sources exist for the precise purpose of enabling the City to acquire 

environmentally sensitive areas such as Garaventa Hills for conservation is 

just the sort of information CEQA intended to provide those charged with 

making important, often irreversible, environmental choices on the public’s 

behalf.
22

At the end of the day, “CEQA compels process. It is a meticulous 

process designed to ensure that the environment is protected. Because the 

EIR is the heart and soul of CEQA, we must assure that [the] EIR facilitated 

the environmental review process as envisioned by CEQA.” (Planning &

Conservation League, supra, 83 Cal.App.4th at p. 911.) Here, this process

failed. Lacking adequate information regarding the no-project alternative,

the city council could not make an informed, reasoned decision on whether

this Project should go forward. Accordingly, its decisions to certify the 

RFEIR and approve the Project must be set aside and a new EIR prepared. 

(See Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236; 

Banning, supra, 2 Cal.5th at p. 942 [EIR’s omission of relevant information 

that resulted in inadequate evaluation of project alternatives constituted 

prejudicial error]; see also Kings County, supra, 221 Cal.App.3d at p. 735 

[EIR’s omission of data comparing natural gas to coal violated CEQA’s 

informational mandate and constituted prejudicial error]; King and Gardiner 

Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 869 (King and 

Gardiner) [EIR’s omission of sufficient information regarding mitigation for 

significant water supply impacts “constitutes a prejudicial violation of CEQA 

by itself”].)

IV. The RFEIR’s analysis and mitigation with respect to vernal pool 

fairy shrimp and the Springtown Alkali Sink are adequate.

A few issues remain. In its opening brief, Save the Hill argued the City 

violated CEQA by failing to analyze the Project’s hydrological impacts to the 

downstream Springtown Alkali Sink and by failing to mitigate the loss of 

critical habitat for the threatened vernal pool fairy shrimp (VPFS). After 

respondents challenged these arguments in its brief, Save the Hill omitted

them from the reply brief, thereby abandoning them. (The Police Retirement 
23

System of St. Louis v. Page (2018) 22 Cal.App.5th 336, 346, fn. 3.) We 

nonetheless very briefly discuss them here.

6

“Under CEQA, ‘If the agency decides to approve a project despite its

significant adverse impacts, the agency must issue findings which specifically

state how the agency has responded to the significant impacts identified in

the EIR.’ ([Citation]; see CEQA, § 21081; CEQA Guidelines, § 15091.) One

such finding is that ‘[c]hanges or alterations have been required in, or

incorporated into, the project which mitigate or avoid the significant effects

on the environment.’ (CEQA, § 21081, subd. (a)(1); CEQA Guidelines,

§ 15091, subd. (a)(1).) Any such finding must be supported by substantial

evidence in the record. (CEQA Guidelines, § 15091, subd. (b).)” (California 

Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 

625 (California Native Plant).) “[W]here substantial evidence supports the 

approving agency’s conclusion that mitigation measures will be effective, 

courts will uphold such measures against attacks based on their alleged 

inadequacy. (Laurel Heights, supra, 47 Cal.3d at p. 407.)” (Sacramento Old 

City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027 (Sacramento Old 

City).)

6 Save the Hill also abandoned a third argument—that the RFEIR 

failed to address impacts from the Project’s proposed construction of a 

pedestrian bridge—after respondents pointed out two factual flaws. First, 

Save the Hill mistakenly claimed the FEIR failed to address the need to 

realign Altamont Creek to accommodate the bridge when in fact no 

realignment was needed. Second, Save the Hill claimed a mitigation 

measure included in the DEIR, Traf-3, was erroneously omitted from the 

FEIR. In fact this measure was appropriately omitted because it related to 

vehicle traffic while the bridge proposed in the FEIR was limited to 

pedestrian traffic.
24

A. VPFS.

Garaventa Hills is designated as a special habitat for VPFS. The 

RFEIR identifies as a potentially significant impact of the Project the 

permanent loss of approximately 0.004 acre of seasonal wetland that could be 

occupied by VPFS. As mitigation, the RFEIR requires Lafferty to 

(1) complete surveys of the area using a protocol acceptable to the USFWS to 

determine whether VPFS are present and, if their presence is detected, 

(2) obtain authorization from the USFWS for the taking of VPFS before 

filling or disturbing the seasonal wetland and (3) provide compensatory 

habitat for lost habitat at a mitigation ratio of 9:1, 10:1 or 11:1 depending on 

the location of the mitigation site, as recommended in the East Alameda 

County Conservation Strategy.

Save the Hill condemns these mitigation measures as inadequate

because they are conditional, requiring implementation only if VPFS are 

actually found on the Project Site. However, as respondents note, the City 

assumed for purposes of the RFEIR that VPFS are present, even though they 

had not been detected, when adopting these measures. Moreover, CEQA 

permits an agency to defer to a future date the adoption of more specific 

mitigation measures: “[F]or kinds of impacts for which mitigation is known 

to be feasible, but where practical considerations prohibit devising such 

measures early in the planning process (e.g., at the general plan amendment 

or rezone stage), the agency can commit itself to eventually devising 

measures that will satisfy specific performance criteria articulated at the 

time of project approval. Where future action to carry a project forward is 

contingent on devising means to satisfy such criteria, the agency should be 

able to rely on its commitment as evidence that significant impacts will in 

fact be mitigated.” (Sacramento Old City, supra, 229 Cal.App.3d at pp. 1028–
25

1029; see California Native Plant, supra, 172 Cal.App.4th at p. 621 [“the 

details of exactly how mitigation will be achieved under the identified 

measures can be deferred pending completion of a future study”].) The

RFEIR meets this standard by adopting specific performance criteria for

Lafferty to follow in case VPFS are found at the Project Site.

Thus, because substantial evidence supports the City’s finding that the

VPFS mitigation measures are adequate, we affirm it. (Sacramento Old City, 

supra, 229 Cal.App.3d at p. 1027; California Native Plant, supra, 172 

Cal.App.4th at p. 625.)

B. Springtown Alkali Sink.

Save the Hill also contends the RFEIR failed to analyze foreseeable

significant hydrological impacts to the Springtown Alkali Sink, an

environmentally sensitive land form downstream from the Project Site. (See

Guidelines, § 15125, subd. (c) [“EIR must demonstrate that the significant 

environmental impacts of the proposed project were adequately investigated 

and discussed”].) Save the Hill relies on the EIR for the Maralisa Planned

Development, which acknowledged: “Water quality degradation from project

development area has the potential to adversely affect the nearby

downstream Springtown alkali sink area, and to contribute to water quality

problems of Alameda Creek and ultimately San Francisco Bay.” Based on

this acknowledgment, Save the Hill claims it was arbitrary and capricious for

the City to omit discussion of these impacts in the RFEIR.

Respondents have a twofold response. First, they note Save the Hill 

does not dispute the RFEIR’s finding, based on an expert’s hydrological 

study, that the Project will not cause significant hydrological impacts to the 

Garaventa Wetlands Preserve, an area adjacent to the Project Site. 

A fortiori, respondents continue, there must be no significant impacts to the 
26

more distant Springtown Alkali Sink. Second, respondents insist the 

Maralisa Planned Development’s EIR is irrelevant here because that project 

was significantly larger, involving 230 acres and several hundred residential 

units. This Project involves only 31.7 acres and 44 residential units.

We agree with these points, which Save the Hill does not dispute. 

Accordingly, because the hydrological expert’s report constitutes substantial 

evidence supporting the City’s finding of no significant hydrological impacts

as a result of the Project, we uphold the RFEIR on this issue. (See The Police 

Retirement System of St. Louis v. Page, supra, 22 Cal.App.5th at p. 346, fn. 3; 

Laurel Heights, supra, 47 Cal.3d at p. 407.)

V. The identified compensatory mitigation measure for permanent 

loss of sensitive habitat is adequate.

The RFEIR recognizes the permanent loss of up to 31.78 acres of 

habitat that supports the California tiger salamander, California red-legged 

frog, San Joaquin kit fox, California burrowing owl, and potentially the 

American badger. The RFEIR therefore requires Lafferty to provide offsite 

compensatory mitigation at a 2.5:1 to 3:1 ratio for this permanent habitat 

loss for each of these species, which can be on the same site if the site has

sufficient space. Lafferty proposed the Bluebell site for this compensatory 

mitigation, an 85-acre parcel in the Springtown Alkali Sink area that 

contains part of Altamont Creek, sensitive soil, vernal pools, and numerous 

plant and animal species.

Save the Hill contends the Bluebell site is inadequate for mitigation

because it is already protected open space under local law and, thus, cannot

make up for the lost habitat. The local law to which the group refers is the 

City’s general plan, goal objective OSC-1.1, policy P6: “The City shall 

preserve and maintain . . . the Springtown Alkali Sink area as [an] important 
27

wildlife and plant habitat[] through preservation of open space in and around 

these areas.”

Respondents counter the general plan provision is merely aspirational. 

It does not accomplish what the RFEIR’s measure does—creation of a 

perpetual legal restraint on development at the Bluebell site supported by

funding for both upkeep and enforcement. Respondents further note the City 

retains the right to compel Lafferty to protect a different mitigation site if the 

Bluebell site proves inadequate.

We agree with respondents. Undisputedly, the Bluebell site is suitable 

for mitigation, as it contains sensitive habitat that houses a variety of plant 

and animal species. Moreover, the RFEIR requires this site, which is

currently privately owned, to be placed “under [a] permanent easement with 

an endowment for restoration and management in perpetuity.” The general 

plan requires nothing of the sort. And, if the Bluebell site proves inadequate 

for the mitigation task with respect to any of the identified animal species, 

the RFEIR authorizes the City to compel Lafferty to find and protect an 

alternative site. (See Preserve Wild Santee v. City of Santee (2012) 210 

Cal.App.4th 260, 279 [“Generally, an agency does not need to identify the 

exact location of offsite mitigation property for an EIR to comply with 

CEQA”]; Guidelines, § 15126.4, subd. (a)(1)(B) [“specific details of a 

mitigation measure . . . may be developed after project approval when it is 

impractical or infeasible to include those details during the project’s 

environmental review provided that the agency (1) commits itself to the 

mitigation, (2) adopts specific performance standards the mitigation will 

achieve, and (3) identifies the type(s) of potential action(s) that can feasibly 

achieve that performance standard”].)
28

Finally, we turn to Save the Hill’s argument that the Bluebell site’s

protection under a conservation easement would not result in the provision of 

any new resources to offset or compensate for the habitat permanently lost to 

the Project. “It would simply ensure the Bluebell Site would not also be lost.” 

Save the Hill relies on King and Gardiner, supra, which rejected an EIR’s 

plan to mitigate the loss of agricultural land to oil and gas activity by 

implementing agricultural conservation easements. The appellate court 

concluded “implementation of agricultural conservation easements for the 

289 acres of agricultural land estimated to be converted each year would not 

change the net effect . . . [that] there would be 289 fewer acres of agricultural 

land in Kern County.” (45 Cal.App.5th at pp. 875–876.)

We do not find King and Gardiner, supra, helpful in this case. First, it 

involved the proposed loss of 7,450 acres of land to an oil and gas drilling 

project (45 Cal.App.4th at pp. 871, 875–876), as compared to the proposed 

loss in this case of about 32 acres. More importantly, CEQA does not require 

mitigation measures that completely eliminate the environmental impacts of 

a project. Rather, CEQA permits mitigation measures that would 

substantially lessen the significant environmental effects of the project. 

(§ 21002.) The Guidelines, in turn, provide that mitigation may include 

“[c]ompensating for the impact by replacing or providing substitute resources 

or environments . . . .” (Guidelines, § 15370, subd. (e), italics added.) 

Consistent with this guideline, as King and Gardiner appears to recognize 

(45 Cal.App.5th at p. 875), conservation easements are an accepted part of 

“ ‘agencies’ toolboxes as available mitigation’ ” for environmental impacts. 

(See Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, 238–

239 [“[agricultural conservation easements] may appropriately mitigate the 

direct loss of farmland when a project converts agricultural land to a 
29

nonagricultural use, even though an ACE [agricultural conservation 

easement] does not replace the onsite resources”]; see Friends of Kings River

v. County of Fresno (2014) 232 Cal.App.4th 105, 124–126 [discussing case law

recognizing that offsite preservation of habitats for endangered species,

which is functionally similar to an agricultural conservation easement, is an

accepted means of mitigating impacts on biological resources].)

Thus, for the reasons stated, we conclude substantial evidence supports 

the City’s conclusion that preservation of the Bluebell site is adequate

compensatory mitigation for the permanent loss of 31.78 acres of habitat 

under the Project. (See Sierra Club, supra, 6 Cal.5th at p. 512.)

VI. Save the Hill lacks standing to challenge the City’s compliance 

with the terms of the DVSA or ALSA.

Last, Save the Hill contends the City violated CEQA by failing to 

pursue the possibility of preserving Garaventa Hills in order to meet its 

obligations under the DVSA and ALSA to acquire environmentally important 

properties as compensatory mitigation to offset the environmental harms of 

other City projects. Save the Hill failed to raise this issue at any point prior 

to this appeal, thereby forfeiting review of it. (Sea & Sage Audubon 

Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) Moreover, it in any 

event lacks merit. Save the Hill was not a party to the DVSA or ALSA and 

therefore lacks standing to enforce any obligation arising from those 

agreements against the City. (Republic Indemnity Co. v. Schofield (1996) 47 

Cal.App.4th 220, 227.)

DISPOSITION

The judgment is reversed. The matter is remanded to the superior 

court with instructions to: (1) vacate its order denying Save the Hill’s 

challenge by way of petition for writ of mandate to the RFEIR’s no-project 

alternative analysis; (2) enter a modified order and a modified judgment
30

consistent with our opinion that Save the Hill’s challenge to the no-project 

alternative analysis was both preserved and meritorious; and (3) issue a 

peremptory writ of mandate directing the City to set aside the certification of 

the RFEIR and approval of the Project. Save the Hill is entitled to recover 

costs on appeal.

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Needham, J.

A161573/Save the Hill Group v. City of Livermore
31

A161573/Save the Hill Group v. City of Livermore

Trial Court: Superior Court Alameda County

Trial Judge: Frank Roesch

Counsel: Greenfire Law and Jessica L. Blome, for Plaintiff and 

Appellant.

Jason Rudy Alcala, City Attorney, Kelly Joanne Trujillo, 

Assistant City Attorney; Remy Moose Manley, 

Sabrina V. Teller and Elizabeth R. Pollock for 

Defendant and Respondent.

Buchalter, Douglas C. Straus and Alicia Guerra, for Real 

Party in Interest and Respondent.