Filed 3/7/22; Certified for Publication 3/30/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SOUTHWEST REGIONAL COUNCIL OF 

CARPENTERS et al.,

 Plaintiffs and Respondents,

v.

CITY OF LOS ANGELES et al.,

Defendants and Appellants;

THE ICON AT PANORAMA, LLC,

Real Party in Interest and Appellant.

B301374

(Los Angeles County

Super. Ct. No. 

BS175189)

APPEAL from a Judgment of the Superior Court of Los 

Angeles County. James C. Chalfant, Judge. Reversed.

Michael N. Feuer, Los Angeles City Attorney, Leonard P. 

Aslanian, Assistant City Attorney, Terry Kaufmann Macias and 

Kathryn C. Phelan, Deputy City Attorneys; Thomas Law Group, 

Tina A. Thomas, Amy R. Higuera, and Christopher J. Butcher for 
2

Appellants, City of Los Angeles, Los Angeles City Council, and 

Department of City Planning.

Ambruster Goldsmith & Delvac LLP, Damon P. Mamalakis 

for Real Party in Interest and Appellant, The Icon at Panorama, 

LLC.

Lozeau Drury, Richard T. Drury, Brian B. Flynn and 

Rebecca L. Davis for Plaintiffs and Respondents, Southwest 

Regional Council of Carpenters and Laborers’ International 

Union of North America, Local 300. 

Rob Bonta, Attorney General of California, Edward Ochoa, 

Senior Assistant Attorney General, Sarah E. Morrison, 

Supervising Deputy Attorney General, Scott J. Lichtig, Lani M. 

Maher, Deputy Attorneys General for Amicus Curiae Attorney 

General of California.

Cox, Castle & Nicholson, Michael H. Zischke and Amy F. 

Foo for Amicus Curiae California Building Industry Association, 

California Business Properties Association, Building Industry 

Association of the Bay Area. 

Law Offices of Ryan Gordon and Ryan Gordon for Amicus 

Curiae Saul Mejia. 

Remy, Moose, Manley, Whitman F. Manley and Nathan O. 

George for Amicus Curiae League of California Cities and 

California State Association of Counties. 

California Renter’s Legal Advocacy and Education Fund, 

Dylan Casey as Amicus Curiae.

David Petit for Amicus Curiae Natural Resources Defense 

Council, Planning and Conservation League and Coalition for 

Clean Air. 

_____________________________
3

The Icon at Panorama, LLC (Icon) proposed a mixed-use 

commercial and residential development in the Panorama City 

neighborhood of Los Angeles, to be called The Icon at Panorama. 

The City of Los Angeles (City) certified a final environmental 

impact report (FEIR) and approved the project. Southwest 

Regional Council of Carpenters and Laborers’ International 

Union of North America, Local 300 (collectively, Petitioners),

challenged the approval, principally arguing the City approved a 

project not described in the draft or final environmental impact 

reports. The trial court granted the unions’ writ petition, finding 

the City’s draft environmental impact report (DEIR) and FEIR 

lacked an accurate, stable, and finite project description as 

required by cases interpreting the California Environmental 

Quality Act (CEQA). (See, e.g., County of Inyo v. City of Los 

Angeles (1977) 71 Cal.App.3d 185, 193 (Inyo); Washoe Meadows 

Community v. Department of Parks and Recreation (2017) 17 

Cal.App.5th 277, 288 (Washoe Meadows).) The trial court also 

concluded that the FEIR failed to adequately address a comment 

on local sewer capacity. It ordered the City to prepare and

circulate a new or supplemental Environmental Impact Report 

(EIR). 

Because we agree with the City and Icon that the City’s 

EIRs contained a sufficiently accurate, stable and finite project

description, and that the City’s response to the comment 

regarding local sewer capacity was adequate given the nature of 

the proposed development, we reverse.
4

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. DEIR, April 6, 2017.

The developer, Icon, conceived of what the parties refer to 

as the Project as a mixed-use development on an approximately 

nine-acre site in Panorama City. The site is bounded on three 

sides by city streets: Roscoe Boulevard, Tobias Avenue, and 

Cedros Avenue. 

Three commercial structures (a former Montgomery Ward, 

a restaurant, and an automotive repair shop, all vacant since 

2003), occupy the Project site. The site is surrounded by a mix of 

residential, retail, office, and restaurant development, and is in a 

“Transit Priority Area.”

On April 6, 2017, the City, as lead agency,1 released the

DEIR for public review and comment.2 As described in the DEIR, 

Icon proposed to demolish the existing structures and build seven 

buildings, consisting of 422 residences (totaling 387,000 square 

feet), an additional 200,000 square feet of commercial space, 

including a 1,200-seat theater complex, a grocery store, and 

1 A “‘[l]ead agency’” is “the public agency which has the 

principal responsibility for carrying out or approving a project 

which may have a significant effect upon the environment.” 

(Public Resources Code § 21067; Laurel Heights Improvement 

Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 

391, fn.4.) Unless otherwise indicated, all further statutory 

references are to the Public Resources Code.

2 Once a DEIR is prepared, the public is provided notice and 

an opportunity to comment. (§ 21092.) These comments and 

responses, if any, are subsequently published in a FEIR. (Cal. 

Code Regs., tit. 14, §§ 15088–15089, 15204, subd. (a).) 
5

associated parking for 1,690 vehicles in a multi-story parking 

structure. The commercial space would occupy five one- and twostory buildings with a six-level parking garage, and the 

residential units would occupy two seven-story buildings with 

two stories of above-ground parking. The Project would not 

include any affordable housing units.

The DEIR stated the Project was designed to provide for 

the efficient and functional development of the underutilized site,

by allowing for regional commercial development through the 

replacement of vacant buildings and surface parking lots with 

new housing and commercial uses to meet community and 

regional demands. The Project would create new housing to meet 

the needs of existing residents and projected population growth 

within the Mission Hills/Panorama City/North Hills Community 

Plan area. In addition, the Project would eliminate blight and 

enhance the visual quality of Panorama City by providing a new 

and attractive development. The DEIR warned, however, that the 

Project would result in significant unavoidable environmental

impacts, including emissions of volatile organic compounds and 

nitrous oxides resulting from increased traffic. 

The DEIR listed four smaller alternatives to the Project:

(1) The required “No Project” alternative of no development 

whatsoever.

(2) The “Reduced Project” alternative consisting of 283 

residential units (257,300 square feet), 134,000 square feet of 

commercial space, and 1,132 parking spaces. The residential 

units would be in two buildings up to five stories high, and the 

commercial uses would be in three separate one- and two-story 

buildings. According to the DEIR: “The design and configuration 

of this alternative would be similar to the Project. The main 
6

difference would be the total square footage and building height, 

resulting in a mixed use development with approximately 67 

percent of the mass of the [P]roject.”

(3) The “All Commercial Project” alternative containing no 

residential units and consisting of 583,000 square feet of floor 

area, with 2,500 parking spaces in a nine-story parking structure. 

Per the DEIR, “[t]he proposed shopping center would feature a 

mix of retail land uses that would complement the nearby 

Panorama Mall shopping center to the east.” The All Commercial 

Project would consist of multiple buildings of up to three stories

with height limits of 60 feet. 

(4) The “By-Right Project” alternative would be developed 

without the zoning change required for the Project and would 

include 350 residential units totaling 259,600 square feet, with 

approximately 160,000 square feet of commercial space, and

1,350 parking spaces. The DEIR noted: “To conform to the 

existing zoning requirements, the uses within the By-Right

Project Alternative would be segregated. The residential units 

would be constructed within an L-shaped building up at the 

northeastern portion of the Project Site. The seven-story 

residential building would front Tobias Avenue and would wrap 

around a two-story commercial building. Two additional smaller 

commercial buildings (one and two stories) would front Roscoe 

Boulevard.”

Public comment on the DEIR highlighted two principal 

issues: hazardous soil contamination and traffic impact. 

Petitioners’ expert soil consultant (Soil Water Air Protection 

Enterprise (SWAPE)) opined the DEIR did not identify health 

risks to construction workers and failed to consider harm to the 

groundwater from soil contamination resulting from past site 
7

uses as an automotive repair facility. Petitioners’ traffic expert 

Daniel T. Smith opined that traffic service at the nearby 

intersection of Roscoe and Woodman would be reduced to an F 

level of service (due to increased traffic flow). Commenters 

asserted the DEIR failed to consider the proposed expansion of 

the adjacent Panorama Mall, which would add 266,000 square 

feet of commercial space next to the Project. In addition, the Los 

Angeles’ Sanitation Department (LASAN) commented that 

wastewater would be handled by the Hyperion Water 

Reclamation Plant, which had sufficient capacity for the project.

Detailed gauging, however, would be needed at the time of 

permitting to identify the local sewer connection point. If 

immediately adjacent sewer lines had insufficient capacity to 

convey anticipated wastewater, the developer would be required 

to pay for building sewer lines to a point in the sewer system with 

sufficient capacity.

Petitioners requested that the City adopt an alternative 

with reduced traffic impact, and suggested mitigation measures 

for emissions and traffic impacts. 

2. Revised DEIR (RDEIR), August 31, 2017.

The City revised the DEIR after considering the comments, 

and on August 31, 2017, released the RDEIR for public review 

and comment. The RDEIR’s primary focus was traffic. It noted 

the Project would affect seven intersections, but with roadway 

improvements and new signals, impacts could be reduced at one 

of the seven intersections. The RDEIR’s description of the Project 

and alternatives was identical to the DEIR; it did not add any 

new alternatives to the project. 
8

Again, Petitioners and others submitted written 

commentary, including Smith’s opinion that the RDEIR 

underestimated traffic impacts and vehicle trips per day, and 

that the Project’s significant and unavoidable impact would be 

more severe than the RDEIR disclosed. Smith recommended 

adoption of Alternative 2. SWAPE opined that due to this 

underestimation of traffic, air pollution was similarly 

understated in the DEIR. Further, SWAPE opined that an 

updated traffic analysis was required that should be based upon 

a correct estimation of vehicle trips per day. 

3. Final EIR (FEIR), February 23, 2018.

On February 23, 2018, the City issued its FEIR for the 

Project. The Project description was the same as the DEIR, but 

the FEIR added a new “Alternative 5,” which consisted of 675 

residential units (615,000 square feet of floor area), and a smaller 

commercial component consisting of 60,000 square feet of office 

space. Alternative 5 deleted the theater, grocery store, and 

parking garage from the proposal. Alternative 5 would have 1,200 

parking spaces, 940 for residential use and 260 for commercial 

use. “The residential units would be developed along Cedros 

Avenue in the western, central, and northern portions of the 

Project Site. The commercial land uses would be developed in the 

southern (Roscoe Boulevard) and eastern (Tobias Avenue) 

portions of the project site. . . . An approximately 16,895-squarefoot public plaza would be located along Tobias Avenue, which 

would function as passive landscaped and hardscaped area for 

visitors and residents.”

The reduction in commercial development reflected in 

Alternative 5 was intended to reduce adverse effects on traffic 
9

and air quality, while the increase in housing was designed to 

address regional housing shortages. The FEIR responded to 

Petitioners’ comments regarding air quality analysis related to 

construction activities. 

In response, Smith opined that Alternative 5 would 

generate more traffic than the FEIR stated, and the FEIR failed 

to adopt an appropriate mitigation measure or the 

environmentally superior alternative. Petitioners’ written 

comments in response to the FEIR highlighted what they 

contended were excessive impacts on schools and the fire 

department, and the FEIR’s inadequate responses to sanitation

issues, in particular LASAN’s comment described above. 

4. Advisory Agency Approval of the Revised 

Project, A Smaller Version of Alternative 5, 

March 20, 2018. 

In March 2018, City staff recommended approval of a 

smaller version of Alternative 5. This new alternative project had 

not been included in the DEIR, RDEIR or the FEIR. Therefore, 

the public had not received notice of or an opportunity to 

comment on it as part of the EIR process. The new proposal 

consisted of 623 residential units, with 60,000 feet of commercial 

space. The parties refer to this new alternative as the Revised 

Project. Compared to Alternative 5, the Revised Project contained 

52 fewer residences (resulting in 99,430 fewer square feet of 

residential construction), and the same commercial area. 

In particular, the residences all would be within two 

separate buildings, with one building spanning the entire 

frontage of the site along Cedros Avenue, and the other 

residential building positioned within the central portion of the 
10

site, overlooking the public plaza on Tobias Avenue. Both 

buildings would reach six- and seven-stories in height, with four 

and five stories of residential uses over two levels of podium 

parking. Commercial uses would be located within two separate 

one-story buildings, fronting on Roscoe Boulevard and Tobias 

Avenue, located on the eastern and southern portions of the site. 

The two commercial buildings would be separated by an 

approximately 17,000 square-foot plaza, and served by a central 

surface parking lot and a ground-floor podium parking area 

below one of the residential structures. The revised Project 

similarly included the demolition and removal of the three 

existing vacant commercial buildings and associated surface 

parking areas. 

On March 20, 2018, the Advisory Agency of the Planning 

Commission approved the Revised Project. The Advisory Agency 

described it as a “slightly reduced” version of the FEIR’s 

Alternative 5, designed to eliminate some unavoidable impacts of 

the original Project. 

5. Petitioners Appeal to the Planning Commission 

and City Council, April and August 2018. 

On April 3, 2018, Petitioners appealed the Advisory Agency

approval of the Revised Project to the Planning Commission. 

Petitioners asserted the Revised Project did not comply with

CEQA because the project description had changed after closure 

of public comments.

3 Petitioners pointed out that there had been 

extensive comments for a project never approved, and that the 

approved project had unstudied impacts on traffic, air quality, 

3 There is no formal comment period for a FEIR. 

(See § 21091.) 
11

schools, fire, police, and sewage. They asserted that such an 

EIR—one that added significant new information after the public

comment period had expired—required new notice and 

recirculation for additional comments. 

After a hearing held April 26, 2018, the Planning 

Commission observed that the Project was supported by local 

community groups, including the Chamber of Commerce, the 

LAPD, and area residents, and that the Revised Project had the 

same unavoidable impacts as the Project. The Planning 

Commission denied the appeal. 

Petitioners appealed that decision to the Los Angeles City 

Council, raising the same arguments, but the Planning and Land 

Use Management Committee (which hears such appeals) denied 

the appeal. In August 2018, the City certified the Revised Project 

of 623 residential units and 60,000 square feet of commercial 

space. 

6. Petition for Writ of Mandate. 

Petitioners filed a verified petition for writ of mandate on 

October 1, 2018, seeking a set-aside of the Revised Project, the 

City’s findings, and the project approval, based on (1) what they 

contend was an inadequate project description in the EIR because 

neither the DEIR, the RDEIR, nor the FEIR described the project 

that was ultimately approved; (2) failure to recirculate the EIR 

based upon the substantially changed project; (3) failure to 

adequately disclose and/or mitigate impacts to air quality, 

greenhouse gases, traffic, hazardous materials, and public 

services; and (4) failure to adequately analyze a reasonable range 

of alternatives. 
12

Petitioners also argued that the revised project description 

violated the CEQA requirement of a “stable, accurate and finite 

project” description throughout the CEQA process. Respondents 

countered that the project remained a mixed-use project; as a 

result, the question was not whether the project description was 

stable, but rather whether the changes constituted “significant 

new information” requiring recirculation of the EIR under section 

15088.5. 

7. Trial Court Ruling.

The trial court granted the petition after finding the City 

violated CEQA by failing to provide a stable, accurate, and finite

project description and failing to address LASAN’s comment

adequately. 

The court first addressed the City’s argument that the 

project description was accurate, stable and finite, and that the 

issue was properly framed as whether the Revised Project 

constituted “new information” addressable only under CEQA’s 

recirculation provisions, section 21092.1 and CEQA Guidelines

4

section 15088.5, subdivision (a). As framed by the trial court, 

“[t]he issue becomes whether the City’s presentation and 

approval of the Revised Project can only be addressed as new 

information under [section 21092.1] and Guidelines section

15088.5, and not as a violation of the separate requirement for 

‘an accurate, stable and finite’ project description.”

Although it found petitioners had waived any argument 

that recirculation of a new or revised EIR containing a 

description of the Revised Project was required by Guidelines 

4 The CEQA Guidelines are found at Cal. Code Regs., tit. 14, 

section 15000, et seq. (hereinafter “Guidelines”). 
13

section 15088.5, the court agreed that the Revised Project did not 

constitute “new information” requiring recirculation of the FEIR

pursuant to that Guideline. The court held, however, that 

nothing in section 15088.5, foreclosed an argument that the 

project description had changed too much, i.e., was “unstable,”

even though recirculation was not required under section 

21092.1. 

In evaluating the stability of the project description, the 

court analyzed and applied Inyo, supra, 71 Cal.App.3d 185, 

Washoe Meadows, supra, 17 Cal.App.5th 277, South of Market 

Community Action Network v. City and County of San Francisco 

(2019) 33 Cal.App.5th 321 (SoMa), and Citizens for a Sustainable 

Treasure Island v. City and County of San Francisco (2014) 227 

Cal.App.4th 1036 (Treasure Island). 

The trial court concluded the project description was 

impermissibly unstable. “As in Washoe Meadows and Inyo, the 

City’s approval of the Revised Project must be set aside because 

the Project described in the DEIR, RDEIR, and FEIR differed 

significantly from the Revised Project adopted by the Advisory 

Agency. The difference between the Revised Project’s 623 

residential units and 60,000 square feet of commercial space and 

the Project’s 422 residential units and 200,000 square feet of 

commercial space . . . runs afoul of the CEQA 

requirement . . . [that] ‘for a project to be stable, the DEIR, the 

FEIR, and the final approval must describe substantially the 

same project.’” In particular, the court took issue with the fact 

the Revised Project was never subject to a formal comment 

period, which in the court’s view presented a “moving target 

which impaired the public’s ability to participate in the 

environmental review process.”
14

The court rejected the City’s reliance on SoMa, where two 

project alternatives (one commercial and one residential) that 

had similar physical footprints were evaluated side-by-side, with 

public comment on both schemes. “SoMa does not support the 

City’s proposition that ‘a project description is not rendered 

inadequate by changes in the allocation of space between defined 

project uses.’” The trial court distinguished SoMa, where there 

was one project with two options, and rejected the City’s 

contention that the Revised Project was essentially the same 

mixed-use project as the original Project and the alternatives 

presented in the various iterations of the EIR, and was thus a 

“quintessential example of how CEQA” was supposed to operate 

as a project evolves in response to public comment. 

The court opined, “an EIR’s informative quality about 

environmental effects are irrelevant where different project

descriptions vitiate the EIR process as a vehicle for intelligent

public participation. . . . The issue is not whether the Revised 

Project has the same footprint, location, and environmental 

impacts as the Project, but rather whether the DEIR provided an 

accurate description of the Project and alternatives regardless of 

environmental impacts.” “In this case, the Revised Project, a 

variant of Alternative 5 proposed in the FEIR, was adopted and 

was materially different than any alternative in the DEIR.”

The court therefore concluded the DEIR “failed to identify a 

project or any alternative with a similar number of residential 

units and amount of commercial space as identified in the 

Revised Project. . . . The Revised Project’s scope of 623 residential

units was outside the range of any of the alternatives of the DEIR 

or RDEIR. . . . In sum, the problem with the stability of the 
15

Project description is the City’s timing by presenting Alternative 

5 for the first time in the FEIR.”

The court observed that although failure to comply with 

CEQA’s informational requirements does not require reversal 

unless the petitioner establishes prejudice, the differing project 

descriptions resulted in prejudice. The trial court concluded “the 

failure to include relevant information preclude[d] informed 

decision making and informed public participation, thereby 

thwarting the statutory goals of the EIR process,” citing Washoe 

Meadows. The court also addressed substantive arguments 

regarding the FEIR’s evaluation of environmental impacts (air 

quality, traffic, health risks, and public service impacts), and 

found fault only with what it concluded was a failure by the City 

to respond adequately to LASAN’s evaluation of local sewer 

capacity. The trial court found error in the City’s failure to fully 

analyze sewage impacts based on a potential lack of immediately 

available local sewer line capacity. 

The trial court ordered the FEIR certification and Revised 

Project approval set aside, and ordered the City to prepare a new 

or supplemental EIR for public comment. 

The trial court entered final judgment on September 25, 

2019, issuing a writ of mandate. 

DISCUSSION

The City argues on appeal that (1) Petitioners waived any 

recirculation challenge; (2) the trial court erred in adding a 

“materially different” test to CEQA’s stable project description 

requirement because “significant new information” under section 

15088.5 is the only ground upon which a trial court can order 

recirculation of an EIR; (3) the project description was not 

unstable; and (4) the City’s response to LASAN’s comment 
16

regarding sewer impacts was adequate. Four amicus briefs5

argue in favor of project approval, contending the trial court 

erred in not applying the section 15088.5 standard, and further 

argue that the trial court’s test injects uncertainty into the CEQA 

process, discourages lead agencies from approving smaller 

projects in response to comments, and will result in a slowdown 

of new housing construction in a time of need. The California 

Attorney General and the Natural Resources Defense Council 

filed amicus briefs urging affirmance and asserting that the 

City’s interpretation of CEQA would undermine public 

participation and informed decision-making. 

I. OVERVIEW OF CEQA AND STANDARD OF REVIEW.

A. CEQA’s Purpose and the Function of an EIR.

CEQA advances four related purposes: (1) informing “the 

government and public about a proposed [project’s] potential 

environmental impacts;” (2) identifying “ways to reduce or avoid 

environmental damage;” (3) preventing “environmental damage 

by requiring project changes via alternatives or mitigation 

measures when feasible;” and (4) disclosing “to the public the 

rationale for governmental approval of a project that may 

significantly impact the environment. [Citation.]” (California 

Building Industry Assn. v. Bay Area Air Quality Management 

Dist. (2015) 62 Cal.4th 369, 382 (CBIA).)

5 California Renters Legal Advocacy and Education Fund, 

the League of California Cities and California State Association 

of Counties, the California Building Industry Association, and 

Saul Mejia, an individual, filed amicus briefs urging reversal. 
17

“To further these goals, CEQA requires [public] agencies

follow a three-step process when planning an activity that could 

fall within its scope. [Citations.] First, the agency must 

determine whether a proposed activity is a ‘[p]roject,’ i.e., an 

activity that is undertaken, supported, or approved by a public 

agency and that ‘may cause either a direct physical change in the 

environment, or a reasonably foreseeable indirect physical 

change in the environment.’ [Citation.]” (CBIA, supra, 62 Cal.4th 

at p. 382.) “Second, if the proposed activity is a project, the 

agency must [determine] whether the project is exempt from the 

CEQA review process under either a statutory exemption 

[citation] or a categorical exemption set forth in the CEQA 

Guidelines [citations]. If the agency determines the project is not 

exempt, it must then decide whether the project may have a 

significant environmental effect. [If not,] the agency ‘must “adopt 

a negative declaration to that effect.”’ [Citations.]” (Ibid., fn. 

omitted.) Finally, “if the agency finds the project ‘may have a 

significant effect on the environment,’ it must prepare an EIR 

before approving the project. [Citations.]” (Ibid.; Sierra Club v. 

County of Fresno (2018) 6 Cal.5th 502, 511-512 (County of 

Fresno).)

An EIR “is an informational document” designed to 

“provide public agencies and the public in general with detailed 

information about the effect [of] a proposed project . . . on the 

environment.” (§ 21061.) The EIR also provides methods by 

“which the significant effects of such a project might be 

minimized” and proposes alternatives to the project. (Ibid.) “The 

EIR must set forth not only environmental impacts and 

mitigation measures to be reviewed and considered by state and 

local agencies, but also project alternatives [citations]—including 
18

a ‘no project’ alternative. [Citation.] . . . ‘[T]he mitigation and 

alternatives discussion forms the core of the EIR.’ [Citation.]”

(Friends of the Eel River v. North Coast Railroad Authority (2017) 

3 Cal.5th 677, 713, Emphasis in original.)

B. Standard of Review.

An agency abuses its discretion under CEQA either by 

failing to proceed in the manner CEQA requires or by reaching 

factual conclusions unsupported by substantial evidence. 

(Banning Ranch Conservancy v. City of Newport Beach (2017) 2 

Cal.5th 918, 935 (Banning Ranch Conservancy).) This 

“procedural issues/factual issues dichotomy” works well for courts 

reviewing agency determinations. (County of Fresno, supra, 6 

Cal.5th at p. 512.) Judicial review of these two types of error 

differs significantly, however. “‘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 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.” [Citation.]’

[Citation.]” (Banning Ranch Conservancy, supra, 2 Cal.5th at 

p. 935.)

“Where an EIR is challenged as being legally inadequate, a 

court presumes a public agency’s decision to certify the EIR is 

correct, thereby imposing on a party challenging it the burden of 

establishing otherwise. [Citations.]” (Sierra Club v. City of 
19

Orange (2008) 163 Cal.App.4th 523, 530 (City of Orange).) Our 

review in a CEQA case, as in other mandamus actions, is the 

same as that of the trial court. (In re Bay-Delta etc. (2008) 43 

Cal.4th 1143, 1162 (Bay-Delta).) We review the agency’s action, 

not the trial court’s decision, and our inquiry extends only to 

whether there has been a prejudicial abuse of discretion on the 

part of the agency. (Id. at pp. 1161–1162.) We do not pass upon 

the correctness of the EIR’s environmental conclusions, but only 

upon its sufficiency as an informative document. (Id. at p. 1161.) 

Generally, that inquiry is a mixed question of law and fact 

subject to de novo review, “but to the extent factual questions 

predominate, the more deferential substantial evidence standard”

of review applies. (County of Fresno, supra, 5 Cal.5th at p. 516.)

The failure to comply with CEQA’s informational 

requirements does not require reversal unless there is prejudice. 

(§ 21005, subd. (b).) Such prejudice is found, however, if the 

failure to include relevant information precludes informed 

decision-making and informed public comment. (Washoe 

Meadows, supra, 17 Cal.App.5th at p. 290.) The omission of 

relevant information is deemed prejudicial “‘regardless of 

whether a different outcome would have resulted if the public 

agency had complied with those provisions.’ [Citations.]” (Ibid., 

citing § 21005, subd. (a).)

II. THE REVISED PROJECT DESCRIPTION 

COMPLIED WITH CEQA.

A. CEQA’s Stable Project Requirement.

The primary purpose “of an EIR is to give the public and 

government agencies the information needed to make informed 
20

decisions, thus protecting ‘“not only the environment but also 

informed self-government.”’ [Citation.]” (Bay-Delta, supra, 43 

Cal.4th at p. 1162.) “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.’ [Citations.]” (County of 

Fresno, supra, 6 Cal.5th at p. 516.) The sufficiency of an EIR is to 

be evaluated in light of what is reasonably feasible. (California 

Oak Foundation v. Regents of the University of Southern 

California (2010) 188 Cal.App.4th 227, 262.) “The overriding 

issue on review is thus ‘whether the [lead agency] reasonably and 

in good faith discussed [a project] in detail sufficient [to enable]

the public [to] discern from the EIR the “analytic route the . . . 

agency traveled from evidence to action.” [Citation.]’ [Citation.]”

(Ibid.)

A draft EIR must contain a project description. (SoMa, 

supra, 33 Cal.App.5th at p. 332.) An accurate project description 

is the “sine qua non” of an informative and legally sufficient EIR. 

(Ibid.) The project description must include (a) the precise 

location and boundaries of the proposed project, (b) a statement 

of the objectives sought by the proposed project, (c) a general 

description of the project’s technical, economic and environmental 

characteristics, and (d) a statement briefly describing the 

intended use of the EIR. (Guidelines, § 15124, subds. (a)–(d).)

The project description must be “accurate, stable and 

finite[.]” (Inyo, supra, 71 Cal.App.3d at p. 193.) “A project 

description that gives conflicting signals to decision makers and 

the public about the nature of the project is fundamentally 

inadequate and misleading. [Citation.]” (SoMa, supra, 33 
21

Cal.App.5th at p. 332.) This description of the project is an 

indispensable element of a valid EIR. (Washoe Meadows, supra, 

17 Cal.App.5th at p. 287.) Whether the EIR adequately describes 

the project is reviewed de novo. (Ibid.)

A quintet of cases evaluating whether a project description 

remained stable throughout the EIR process provides some 

guideposts for interpreting the stable project description 

requirement. A salient conclusion emerges from these cases: a

stable description permits informed public participation in the 

environmental review process. Without that, the purposes of 

CEQA are nullified and the statute is violated. 

1. Inyo.

Inyo was the first decision to articulate the need for a 

stable, definite, and unambiguous project description as part of 

CEQA’s environmental review process. The project in Inyo

involved the extraction of subsurface water in the Owens Valley 

by the City of Los Angeles’s Department of Water and Power. 

(Inyo, supra, 71 Cal.App.3d at p. 188.) Although the EIR initially 

described the project as a proposed increase in extraction of 

subsurface water, other portions of the EIR discussed different 

proposals. (Id. at p. 190.) These proposals included adding 

extensive infrastructure, including canals, substantially 

increased pumping of groundwater, and export of additional 

groundwater through the City’s aqueducts to the San Fernando 

Valley. (Ibid.) As a result, it was unclear what project was being 

evaluated. The environmental impact discussed in the FEIR was 

extensive, including irreversible changes to natural vegetation. 

(Id. at p. 191.)
22

Inyo acknowledged that the EIR adequately described the 

broader project’s environmental effects, and thus the informative 

quality of the EIR’s environmental forecasts were not affected by 

the “ill-conceived, initial project description.” (Inyo, supra, 71 

Cal.App.3d at p. 197 [elasticity of project concept did not vitally 

affect the impact sections of the report].) Nonetheless, the court 

concluded that the “incessant shifts among different project 

descriptions [within the same EIR] vitiate[d] the City’s EIR 

process as a vehicle for intelligent public participation,” because 

“[a] curtailed, enigmatic or unstable project description draws a 

red herring across the path of public input.” (Id. at pp. 197, 198.)

2. Washoe Meadows.

More recently, in Washoe Meadows, supra, 17 Cal.App.5th 

277, the court reiterated CEQA’s requirement of a clear and 

unambiguous project description. In Washoe Meadows, the 

California State Department of Parks and Recreation (the 

Department) proposed the “‘Upper Truckee River Restoration and 

Golf Course Reconfiguration Project’” to improve Truckee River 

and Lake Tahoe water quality, and to preserve and protect

wildlife habitat. (Id. at pp. 282–284.) The draft EIR identified five 

alternatives for the project without specifying a preferred 

alternative, stating the Department would select a preferred 

alternative after “‘receipt and evaluation of public comments.’”

(Id. at p. 283.) A discussion of that decision would be included in 

the FEIR. (Ibid.) The FEIR “identified ‘[a] refined version of 

Alternative 2’” as the “proposed preferred alternative” and 

explained the environmental rationales for the choice. (Id. at pp. 

283–284.)
23

Washoe Meadows found this project description legally 

impermissible under CEQA. (Washoe Meadows, supra, 17 

Cal.App.5th at p. 285.) “Dispositive of this appeal is the [draft] 

EIR’s failure to provide the public with an accurate, stable and 

finite description of the project.” (Ibid.) “Rather than providing 

inconsistent descriptions of the scope of the project at issue, the 

DEIR did not describe a project at all. Instead, it presented five 

different alternatives . . . .” (Id. at p. 288.) “‘A DEIR that states

the eventual proposed project will be somewhere in “a reasonable 

range of alternatives” is not describing a stable proposed 

project.’” (Ibid.) “But as [Inyo] makes clear, the problem with an 

agency’s failure to propose a stable project is not confined to ‘the 

informative quality of the EIR’s environmental forecasts.’ 

[Citation.] Rather, inconsistencies in a project’s description, or (as 

here) the failure to identify or state any project at all, impairs the 

public’s right and ability to participate in the environmental 

review process.” (Ibid.) In particular, Washoe Meadows took issue 

with the vast differences in the five alternatives, each located in a 

different place along the Truckee River and thus creating a 

different footprint, and each creating a different set of impacts

requiring different mitigation measures. (Id. at p. 289.)

Washoe Meadows found the Department was able to 

provide certainty; it had selected a preferred alternative as part 

of its public scoping process for the project. (Washoe Meadows, 

supra, 17 Cal.App.5th at pp. 283–284.) But it simply failed to 

“describe a project at all. Instead, it presented five different 

alternatives for addressing the Upper Truckee River’s 

contribution to the discharge of sediment into Lake Tahoe, and 

indicated that following a period for public comment, one of the 
24

alternatives, or a variation thereof, would be selected as the 

project.” (Id. at p. 288.)

It did not matter to the Washoe Meadows court that the 

draft EIR thoroughly analyzed the alternative that was 

ultimately selected in the final EIR. (Washoe Meadows, supra, 17 

Cal.App.5th at p. 288.) “[T]he problem with an agency’s failure to 

propose a stable project is not confined to ‘the informative quality 

of the EIR’s environmental forecasts.’ [Citation.]” (Ibid.) Rather, 

a failure to identify or select a project at all “impairs the public’s 

right and ability to participate in the environmental review 

process.” (Ibid.)

3. SoMa.

The project in SoMa involved a four-acre site in downtown 

San Francisco in the area of Fifth and Mission Streets intended 

to provide mixed-use space for the area’s technology industry. 

(SoMa, supra, 33 Cal.App.5th at pp. 327–328.) The existing space 

consisted of seven parking lots and eight buildings with 

approximately 317,700 square feet of space that included the 

historic Chronicle Building. (Id at p. 328.) The DEIR described

two options for the project, a “residential scheme” and an “office 

scheme.” (Ibid.) The project would consist of buildings ranging 

from 195 to 470 feet tall. (Ibid.) Under both schemes, the project’s 

square footage was approximately the same, although the office 

scheme had a larger “‘building envelope’ and higher density than 

the residential scheme.” (Ibid.) Following public comment, the 

City’s planning commission approved the project. (Id. at pp. 328-

329)

In SoMa, the petitioners challenged the FEIR as 

“inadequate” because it presented two different schemes, and as 
25

a result was confusing and hampered their “ability to understand 

which project was actually proposed and analyzed.” (SoMa, 

supra, 33 Cal.App.5th at p. 332.) SoMa rejected this contention

because under both schemes, the project involved construction of 

ground floor space, similar massing of structures, retention of the 

historic Chronicle Building, demolition of all other buildings on 

the site, and construction of four new buildings ranging from 195

to 470 feet. (Id. at p. 333.) The DEIR contained text and tables 

describing in detail both schemes. (Ibid.) Thus, “the record 

reveals the EIR in this case described one project—a mixed-use 

development involving the retention of two historic buildings, the 

demolition of all other buildings on the site, and the construction 

of four new buildings and active ground floor space—with two 

options for different allocations of residential and office units. 

The analysis was not curtailed, misleading, or inconsistent. If 

anything, it carefully articulated two possible variations and fully 

disclosed the maximum possible scope of the project. The project 

description here enhanced, rather than obscured, the information 

available to the public.” (Id. at pp. 333–334, fn. omitted.) 

In conclusion, SoMa observed “[p]laintiffs do not dispute 

the [draft] EIR’s project description met CEQA technical 

requirements, and do not describe any information that was 

required to be included in the project description but was not.

[Citation.]” (SoMa, supra, 33 Cal.App.5th at p. 332.) In fact, the 

draft EIR included “site plans, illustrative massing, building 

elevations, cross-sections and representative floor plans for both 

options.” (Id. at p. 333.) Thus, the project description met the 

information required by the Guidelines. (Id. at p. 355; see also

Guidelines, § 15093, subd. (a) [requiring a general description of 

the project’s technical, economic and environmental 
26

characteristics].) “In any event, when assessing the legal 

sufficiency of an EIR, we do not look for perfection, but [for] 

‘adequacy, completeness, and a good faith effort at full 

disclosure.’ [Citations.]” (Soma, supra, at p. 334.)

4. Treasure Island.

Treasure Island involved a 20-year development plan to 

convert a former military base on a man-made island in the San 

Francisco Bay into a new mixed-use community. (Treasure 

Island, supra, 227 Cal.App.4th at p. 10431044.) The island was 

contaminated with hazardous waste requiring extensive cleanup. 

(Id. at p. 1056.) As a result, the project proponents could not 

precisely predict when the island would be available for 

development. (Id. at pp. 1056–1057.)

The City and County of San Francisco certified the FEIR 

containing a mixed-use development consisting of up to 8,000 

residential units (25 percent of which were to be below-market), 

up to 140,000 square feet of retail space and 100,000 square feet 

of new office space, restoration and reuse of historic buildings, 

300 acres of park, plus bike and transit facilities. (Treasure 

Island, supra, 227 Cal.App.4th at p. 1044.) Due to the hazardous 

materials cleanup, the project was to be constructed in phases 

over a 15- to 20-year period. (Ibid.)

Treasure Island rejected claims that the project description 

was inadequate and misleading. (Treasure Island, supra, 227 

Cal.App.4th at p. 1055.) Treasure Island concluded that a project 

description that included both fixed elements (such as street 

layouts) and conceptual elements (such as the shape of buildings 

or specific landscape designs) was all that could be meaningfully 

provided at present. (Id. at pp. 1053–1054.) Although the EIR in 
27

Treasure Island did not describe the details of all elements of the 

project, the agency committed to conduct subsequent CEQA 

review when project details were developed. (Id. at p. 1051.) “The 

EIR repeatedly acknowledges the duty to perform supplemental 

review under section 21166 as the [p]roject builds out over 15 to 

20 years.” (Ibid.) Thus, the EIR could not be faulted for not 

providing detail that, due to the nature of the project, simply did 

not exist at the time of the FEIR. (Id. at p. 1054, citing 

Guidelines, § 15146 [“‘[T]he degree of specificity required in an 

EIR will correspond to the degree of specificity involved in the 

underlying activity which is described in the EIR.’”].)

Treasure Island distinguished Inyo on the ground that Inyo 

did not address “a situation where the project was rendered 

unstable simply because specific building and design decisions 

were not made in the EIR. Rather, in [Inyo,] the parameters of 

the prospective project itself were unclear [because initially the] 

EIR described the project as a 51-cubic-feet-per-second increase 

in surface pumping to supply water used in the Owens Valley. 

[Citation.] The EIR, however, went on to analyze a project far 

greater in scope, including higher rates of pumping and a vast 

infrastructure needed to deliver water to Los Angeles County.

[Citation.] [Further,] the project description changed throughout 

the EIR itself.” (Treasure Island, supra, 227 Cal.App.4th at 

pp. 1054–1055.) In the case before it, Treasure Island found the 

EIR was sufficient because it contained an 84-page section 

describing the project in great detail, including project features, 

site plans, permits, and agencies with jurisdiction. (Id. at p. 

1055.)
28

5. Stop the Millennium. 

In 2008, Millennium Hollywood LLC (Millennium) 

proposed to build a mixed-use development with a hotel, office 

space, a sports club, residences, commercial space and 

restaurants. (STOPTHEMILLENNIUMHOLLYWOOD.COM v. City of Los 

Angeles (2019) 39 Cal.App.5th 1, 6 (Stop the Millennium).) The 

project site consisted of 4.47 acres near Hollywood Boulevard on 

Vine Street surrounding the historic Capitol Records building. 

(Ibid.) The project would consist of three separate towers arising 

out of low-rise buildings surrounding the preserved Capitol 

Records building and incorporate extensive open space. (Ibid.)

The permit application contained detailed site plans, elevations 

for the buildings, and architectural renderings. (Id. at p. 7.) After 

being informed the enclosed balconies would require a variance, 

Millennium took no further action on the project until 2011. 

(Ibid.)

Millennium submitted a new proposal in April 2011. The 

proposal’s project shared similarities with the 2008 project, but

did not contain much detail about what Millennium proposed to 

build, instead describing a project that was ‘“a mix of land uses, 

including residential dwelling units, luxury hotel rooms, office 

and associated uses, restaurant space, [a] health and fitness club 

[ ] and retail establishments.’” (Stop the Millennium, supra, 35 

Cal.App.5th at pp. 7–8.) The draft EIR similarly contained few 

specifics, stating that the project “‘would implement a 

Development Agreement . . . that would vest the [p]roject’s 

entitlements, establish detailed and flexible development 

parameters for the Project Site and ensure that the [p]roject is 

completed consistent with [these parameters].’” (Id. at p. 9.) 

Further, the DEIR stated that because flexibility was key, “a 
29

conceptual plan has been prepared as an illustrative scenario to 

demonstrate a potential development program.” (Id. at pp. 9–10.)

The conceptual plan and two other scenarios were identified in 

the DEIR. (Id. at p. 10.) The FEIR, published in 2013, included 

without modification the project description in the DEIR. (Id. at 

p. 11.)

The trial court concluded the project description was not 

stable or finite because the conceptual approach used to define 

the project impermissibly deferred a portion of the environmental

impact analysis. (Stop the Millennium, supra, 35 Cal.App.5th at 

p. 14.) Stop the Millennium relied on Inyo and Washoe Meadows.

(Id. at p. 18.) “In this case, the project description is not simply 

inconsistent, it fails to describe the siting, size, mass, or 

appearance of any building proposed to be built at the project 

site. The draft EIR does not describe a building development 

project at all. Rather, it presents different conceptual scenarios 

that Millennium or future developers may follow for the 

development of this site. These concepts and development 

scenarios—none of which may ultimately be constructed—do not 

meet the requirement of a stable or finite proposed project.” (Id. 

at p. 18.) Stop the Millennium affirmed the trial court, finding

Millennium’s conceptual approach to the project failed to present 

any concrete proposal, thereby creating an obstacle to informed 

public participation. (Id. at p. 20.)
30

B. The Revised Project—a Variant of Alternative

5—–Complied With CEQA.

1. The Revised Project Retained the Same

Components.

As the case law illustrates, the requirement of an accurate, 

stable, and finite project description is the “sine qua non” of an 

informative and legally sufficient EIR. (SoMa, supra, 33 

Cal.App.5th at p. 332.) As noted above, this requirement has been 

reiterated in a number of cases since the seminal case of Inyo. 

(See, e.g., Treasure Island, supra, 227 Cal.App.4th at p. 1052 

[“This court is among the many which have recognized that a 

project description that gives conflicting signals to decision 

makers and the public about the nature and scope of the project 

is fundamentally inadequate and misleading [citation.]”]; 

Communities for a Better Environment v. City of Richmond (2010) 

184 Cal.App.4th 70, 84–89 [EIR failed as an informational

document because the project description was inconsistent and 

obscure as to the true purpose and scope of the project]; San 

Joaquin Raptor Rescue Center v. County of Merced (2007) 149 

Cal.App.4th 645, 653 [“‘[a]n 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[ ]’”].)

Here, the City did not violate CEQA’s requirement of an 

accurate, stable, and finite project description. The project, from 

inception through approval, was a mixed-use commercial/

residential project on a defined project site. The only changes 

involved the composition and ratio of the residential to 

commercial footprint, but the proposals demonstrate that the 
31

overall size of the project remained consistent, and the site 

remained the same. 

The project started as a nearly equal balance of commercial 

(200,000 square feet) and residential (387,000 square feet, 422 

units) uses. The four alternatives in the DEIR included a mixeduse project containing 283 residential units and a reduced 

commercial footprint, an all-commercial project of 583,000 square 

feet in a nine-story structure, and a mixed-use project that did 

not require a zoning change but would consist of 350 residences 

(259,600 square feet) and 160,000 square feet of commercial 

space in a seven-story residential tower and a two-story 

commercial building. 

Alternative Five, presented in the FEIR, consisted of 675 

residences (615,000 square feet), and a reduced amount of 

commercial space (60,000 square feet), with the latter reduction 

in size intended to address comments regarding traffic impacts

from commercial development. Ultimately, the Revised Project 

had a slightly smaller residential component than Alternative 5 

(623 residences), and the same amount of commercial space

(60,000 square feet).

In terms of the buildings’ profile, the initial DEIR 

presented a mix of building uses that ranged from seven 

buildings in the initial project (one- and two-story buildings), to 

the Reduced Project alternative in the DEIR (one- and two-story 

commercial uses with two five-story buildings comprising the 

residential component), the All Commercial Project (multiple 

buildings up to three stories, with a nine-story parking 

structure), and the By Right Project with a seven-story 

residential building. The Revised Project contained three fewer 

commercial buildings than the original project and contained the 
32

same number of residential buildings (two), each of which would 

be six to seven stories high. 

An analysis of the various permutations of the project 

alternatives establishes that if residential units were added, 

commercial space was subtracted. Various arrangements of 

building profiles were proposed within this framework, yet the 

physical layout of the project itself remained consistent and 

within the defined outline of the project site. Admittedly, the 

approved project had a slightly different mix of residential versus

commercial development than the alternatives presented in the 

DEIR and FEIR. While the number of residences in the approved 

project exceeded the number of housing units in the various 

alternatives in the DEIR, it was less than the number of 

residences in the FEIR’s alternative 5. Under the circumstances, 

the project definition was sufficiently accurate and stable.

Inyo is readily distinguishable. In Inyo, the project 

description was flawed because it was internally inconsistent 

within the DEIR and because the actual project was much larger 

in scope than some versions of the project description in the 

DEIR. (Inyo, supra, 71 Cal.App.3d at pp. 197, 198.) Here, the 

public was given the opportunity to consider and comment on 

various alternative compositions of the proposed 

residential/commercial mixed-use development all within a 

defined project footprint. The alternative selected, although not 

included within the DEIR or FEIR, mitigated traffic impacts by 

altering the residential/commercial mix, stayed within the project 

footprint, and was consistent with the mixed-use project 

definition.

Washoe Meadows also is readily distinguishable. As noted 

above, in that case the state agency presented multiple project 
33

alternatives, all with different footprints and differing 

environmental impacts, leading the court to conclude the public 

was confused about which project to comment on. Here, the 

project alternatives presented for public input had the same 

footprint as each other and the Revised Project was very similar 

in scope and use to alternatives considered. There was no 

evidence of widely varying environmental impact between the 

various project alternatives presented to the public and the 

Revised Project.

In Treasure Island, the project description did not include 

all environmental mediation because the scope of the necessary 

work was not known at the time of the EIR. (Treasure Island, 

supra, 227 Cal.App.4th at p. 1055.) Here, the size and condition 

of the property was fixed and did not necessitate future

evaluations. 

In SoMa, there were two alternatives, one commercial and 

one residential, that were fully vetted in the EIRs. (Soma, supra, 

33 Cal.App.5th at pp. 333–334.) Here, the Project, its 

alternatives, and the Revised Project all involved varying mixes 

of residential and commercial uses on a well defined site. 

Although the Revised Project was not publicly vetted, it was not 

so significantly different from the project alternatives in the 

DEIR to conclude the project definition was unstable. 

Finally, unlike Stop the Millennium, which had no 

meaningful project description, the descriptions of the initial 

project, all alternatives, and the Revised Project were sufficiently 

detailed. Each project contained site renderings and layouts, 

square footages, and building descriptions.

In summary, we agree with the City’s arguments that 

consideration of additional alternatives after a draft EIR is 
34

circulated does not render a project description unstable. Here, 

the DEIR contained all the mandatory elements under CEQA, 

including a general description of the project’s characteristics 

(including environmental impacts), its objectives, and its 

intended uses. (See Guidelines, §15124.) 

2. Public Comment on the Revised Project 

was not Required. 

We acknowledge that the public had no opportunity to 

comment on the specific project actually approved, because it was 

not included in any EIR circulated for comment. But CEQA does 

not appear to require the public be afforded an opportunity to 

comment on the final approved project by either including it as 

an alternative in the DEIR or RDEIR—or recirculating a RDEIR 

that contains a description of the final approved project and 

allows for public comment. CEQA Guidelines section 15088.5 

subdivision (a) (3) mandates recirculation where a “feasible 

project alternative or mitigation measure considerably different 

from others previously analyzed would clearly lessen the 

environmental impacts of the project, but the project's proponents 

decline to adopt it.” This is not a situation where the proponent 

declined to adopt a feasible project alternative or mitigation 

measure, so that provision does not apply. And in any event, the 

petitioners waived any recirculation challenge.

Although we believe decision-makers and the public would 

be better served if the public had an opportunity to comment on 

the actual project before approval, we decline to engraft that 

requirement into CEQA. This is especially the case where, as 

here, the State and region are in the midst of a housing shortage 

and the dispute centers on the number of residential units 
35

approved in an urban in-fill development. (See § 21083.1; 

Berkeley Hillside Preservation v. City of Berkeley (2015) 60 

Cal.4th 1086, 1107.) Section 21083.1 directs courts “not [to] 

interpret [the CEQA statutes] or the state guidelines adopted 

pursuant to Section 21083 in a manner which imposes procedural 

or substantive requirements beyond those explicitly stated in 

[CEQA] or in the state guidelines.” (§ 21083.1.) The purpose of 

section 21083.1 is to “limit judicial expansion of CEQA 

requirements” and to “‘reduce the uncertainty and litigation risks 

facing local governments and project applicants by providing a 

“safe harbor” to local entities and developers who comply with the 

explicit requirements of the law.’” (Berkeley Hillside Preservation, 

supra, 60 Cal.4th at p. 1107.)

Here, the City complied fully with CEQA’s information 

requirements by providing a combined total of 92 days of public 

comment on the DEIR, which resulted in revision to the original 

Project based on public comments received. From March 2018 

when the Revised Project was identified by City staff in response 

to public comment, to the final City Council hearing in August 

2018 approving the Revised Project, the public had five months 

and multiple public hearings to comment on the Revised Project. 

And, indeed, the City received comments on the Revised Project, 

which—with the exception of Petitioners’ comments—

overwhelmingly supported the Revised Project, as well as its 

reduction in environmental impacts and increase in critically 

needed housing. (See, e.g., AR 3621-3634,3699-3713, 5240, 5295, 

6516, 7601, 7603-7605, 7609.) The City contends this is precisely 

the way “CEQA is supposed to work.” (Treasure Island, supra, 

227 Cal.App.4th at 1062.)
36

Moreover, petitioners cannot show any prejudice flowing 

from the City’s inclusion of Alternative 5 in the FEIR and its 

approval of the Revised Project, although neither was circulated 

for an official period of public comment. The record establishes 

there was extensive commentary on the original alternatives, and 

that commentary on factors like traffic and environmental 

contamination were taken into account before preparation of the 

FEIR, and formed the basis for the Revised Project. Thus, there 

was no prohibited impediment to informed decision-making. 

C. Recirculation Under Section 15088.5

1. When Recirculation is Required.

The parties dispute whether recirculation under the 

standards of section 15088.5 is the only test for recirculating an 

EIR for additional public review. The City contends the trial 

court’s “materially different” project alternative test conflicts 

with case law on circulation, thereby rendering the recirculation 

test meaningless. (See, e.g., Clover Valley Foundation v. City of 

Rocklin (2011) 197 Cal.App.4th 200, 223-224.) The City also 

asserts that Petitioners waived any argument under section 

15088.5. Petitioners assert that recirculation contemplated by 

15088.5 has no application to an unstable project description.

“If the lead agency adds ‘significant new information’ to the 

EIR subsequent to the close of the public comment period but 

prior to certification of the final EIR, CEQA requires that the 

lead agency provide a new public comment period. (§ 21092.1.)”

(Laurel Heights Improvement Assn. v. Regents of University of 

California (1993) 6 Cal.4th 1112, 1124-1125, italics omitted, fn. 

omitted, (Laurel Heights II); Mount Shasta Bioregional Ecology 
37

Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, 217.) 

Recirculation means making the revised EIR available for public 

review and consulting with the other agencies again before 

certifying the EIR. (Guidelines, § 15088.5, subd. (a).) “New 

information added to an EIR is not ‘significant’ unless the EIR is 

changed in a way that deprives the public of a meaningful 

opportunity to comment upon a substantial adverse 

environmental effect of the project or a feasible way to mitigate or 

avoid such an effect (including a feasible project alternative) that 

the project’s proponents have declined to implement.” (Ibid.)

“‘Significant new information’ requiring recirculation 

include[s], for example, a disclosure showing that: [¶] (1) A new 

significant environmental impact would result from the project or 

from a new mitigation measure proposed to be implemented[;] 

[¶] (2) A substantial increase in the severity of an environmental 

impact would result unless mitigation measures are adopted that 

reduce the impact to a level of insignificance[;] [¶] (3) A feasible 

project alternative or mitigation measure considerably different 

from others previously analyzed would clearly lessen the 

significant environmental impacts of the project, but the project’s 

proponents decline to adopt it[;] [¶] (4) The draft EIR was so 

fundamentally and basically inadequate and conclusory in nature 

that meaningful public review and comment were precluded.”

(Guidelines, § 15088.5, subd. (a).)

Recirculation is thus “not required simply because new 

information is added. . . . ‘[T]he final EIR will almost always 

contain information not included in the draft EIR’ given the 

CEQA statutory requirements of circulation of the draft EIR, 

public comment, and response to these comments prior to 

certification of the final EIR. . . . ‘[R]ecirculation was intended to 
38

be an exception, [not] the general rule.’ [Citation.]” (South County 

Citizens for Smart Growth v. County of Nevada (2013) 221 

Cal.App.4th 316, 328 (South County).)

Under section 15088.5, we review for substantial evidence 

an agency’s decision not to revise and recirculate an EIR. 

(Guidelines, § 15088.5, subd. (e).) In doing so, we resolve 

reasonable doubts regarding the agency’s decision in favor of 

upholding the administrative decision. (Laurel Heights II, supra, 

6 Cal.4th at pp. 1133, 1135.)

2. Applying Section 15088.5, The Revised 

Alternative 5 Did Not Require Recirculation.

Here, although we agree Petitioners waived the section 

15088.5 issue by failing to raise it as grounds for recirculation, as 

our analysis above demonstrates, recirculation was not required 

by Guidelines section 15088.5, subdivision (a)(3) because the 

Revised Project was not “considerably different from other 

alternatives previously analyzed” in the DEIR. 

In Western Placer Citizens for an Agricultural & Rural 

Environment v. County of Placer (2006) 144 Cal.App.4th 890, a 

county’s EIR analyzing a proposed aggregate mine did not violate 

CEQA by failing to include and analyze a revised project 

description submitted by the developer after the final EIR was 

prepared. Western Placer concluded CEQA does not per se require 

a revised project description be included in the final EIR itself. 

On the facts before it, the court found substantial evidence in the 

record demonstrating the changed project was not significant new 

information requiring additional analysis in, or recirculation of, 

the FEIR. (Id. at pp. 895–896.)
39

Indeed, here the Revised Project was presaged by the 

various alternatives in the original DEIR as discussed above. 

Further, the approach here, in which various components of the 

project were revised to meet the public commentary, complies 

with CEQA. In California Oak Foundation v. The Regents of the 

University of California (2010) 188 Cal.App.4th 227, the court 

upheld a “mix-and-match” approach, in which components from 

different alternatives were substituted for one another, because 

such an approach was sufficient to “encourage informed decisionmaking and public participation.” (Id. at pp. 274, 276.) 

As observed in South County, supra, 221 Cal.App.4th 316, 

the final EIR (or in this case, approved project) by necessity will 

contain new information. (Id. at p. 328.) In other words, not every 

proposed alternative to a project that might emerge during the 

decision-making process triggers recirculation, particularly

where, as here, the proposed alternative is substantially similar 

to the alternatives already evaluated in the EIR. Further, we 

should not strain to require recirculation under the guise of an 

unstable project definition or by relying on a “materially 

different” standard not present in CEQA, for by doing so, we 

engraft unnecessary requirements that CEQA does not sanction. 

(See § 21083.1; Berkeley Hillside Preservation v. City of Berkeley, 

supra, 60 Cal.4th at p. 1107.) 6

6 We note that none of the cases discussed above considering 

an unstable project description was based upon recirculation 

demands under section 15088.5. (See, e.g., SoMa, supra, 35 

Cal.App.5th at p. 329 [challengers sought set aside of the 

certification of the EIR and approval of the project]; 

Stopthemilleniumhollywood.com, supra, 39 Cal.App.5th at p. 12 

[same]; Inyo, supra, 71 Cal.App.3d 185 [challenge to return of 
40

III. THE CITY ADEQUATELY RESPONDED TO LASAN’S 

COMMENTS.

As noted above, the trial court concluded the FEIR’s

response to LASAN’s comment about local sewer line capacity 

was inadequate. The City principally argues (1) the City’s 

response was adequate under CEQA standards, and it was not 

required to undertake additional local sewer line analysis;

(2) substantial evidence supports the City’s determination that 

the Project’s impact on sewer capacity was less than significant,

and there was no evidence of potential impact from construction 

of sewer lines; and (3) in any event, Petitioners cannot raise a 

new wastewater argument for the first time in reply. Petitioners 

respond that the City’s failure to include a project or alternative 

in the DEIR or RDEIR based on wastewater generation rates for 

a 675-unit residential project rendered LASAN’s comment 

regarding increased wastewater evaluation meaningless.

7

writ]. In both Treasure Island, supra, 227 Cal.App.4th 1036 and 

Washoe Meadows, supra, 17 Cal.App.5th 277, challenges under 

section 15088.5 were directed at issues other than the project 

description. (Treasure Island, supra, 227 Cal.App.4th at pp. 

1061–1063 [new information challenge to EIR made under 

section 15088.5 separate from unstable project description 

challenge]; Washoe Meadows, supra, 17 Cal.App.5th at p. 290 

[challenge under section 15088.5 for failure to explain selection of 

alternative and difference in vegetation maps between DEIR and 

FEIR]. 

7 Petitioners move to strike two pages (pages 64 and 65) of 

Appellants’ Joint Reply Brief wherein Appellants conclude that 

the 623-unit approved project would generate less wastewater 
41

A. Factual Background.

The City prepared a Wastewater Facilities Plan in 1982 

and updated it in 1991. The 1991 plan contained plans for 

facilities through 2010 and at the time of the DEIR regulated 

wastewater facilities in the City. In 1990, the City adopted

Ordinance No. 166,060 to address the problem of insufficient 

wastewater treatment capacity. The ordinance established sewer 

permit allocation regulations for projects discharging wastewater 

to the Hyperion Water Reclamation Plant (Hyperion Plant). 

The Hyperion Plant has the capacity to treat 450 million 

gallons per day of wastewater generated in the western portion of 

Los Angeles County and the City of Los Angeles. Quite apart 

from capacity at the Hyperion Plant or other treatment plants, 

the City requires, as part of the normal construction and building 

process, that an applicant confirm with the City that the capacity 

of the local and trunk lines that would service the project are 

sufficient to accommodate the project’s sewer flows during the 

than the originally proposed 422-unit project. Petitioners contend 

this factual assertion appears nowhere in the record and

therefore is improper. (See, e.g., Western States Petroleum Assn. 

v. Superior Court (1995) 9 Cal.4th 559, 576, 578 [extra-record 

evidence prohibited on appeal].) The City argues that the motion 

arises from an argument waived at trial and, in any event, the 

chart is based upon evidence in the administrative record; i.e., 

the necessary factual information permitting a reasonable 

inference that less wastewater would be generated appears in the 

record. We deny the motion to strike because, as discussed below, 

total wastewater discharge estimates do not affect the adequacy 

of the City’s response to the LASAN comments regarding local 

sewer line capacity.
42

construction and operation phases. “Furthermore, a Project shall 

implement any upgrades to the sewer system serving the Project 

that could be needed to accommodate the Project’s wastewater 

generation.”

Currently, the Project site is unoccupied. The Project was 

estimated to generate 89,320 gallons per day of wastewater. The 

DEIR outlined potential wastewater impacts on the 

infrastructure serving the Project. The existing sewer lines that 

currently serve and would continue to serve the Project site 

consist of two eight-inch lines on Cedros and Tobias Avenues, 

which join to feed an 18-inch line on Van Nuys Boulevard, which 

in turn feeds into a 60-inch line on Hart Street, and an 18-inch

line on Hazeltine Street. The flow from Hazeltine Street feeds 

into a 36-inch line before discharging into a 54-inch sewer line on 

Chandler Boulevard. 

The DEIR stated that although the Project would generate 

wastewater from the site, wastewater treatment facilities

(namely, the Hyperion Plant) could accommodate the additional 

sewage flow. “As a result, the Project would not result in the need 

for new or additional wastewater treatment facilities. Therefore, 

Project impacts to Wastewater treatment capacity would be less 

than significant.”

In response at Comment 5-2, LASAN observed that 

“[b]ased on the estimated flows, it appears the sewer system 

might be able to accommodate the total flow for your proposed 

project. Further detailed gauging and evaluation will be needed 

as part of the permit process to identify a specific sewer 

connection point. If the public sewer has insufficient capacity then 

the developer will be required to build sewer lines to a point in the 

sewer system with sufficient capacity. A final approval for sewer 
43

capacity and connection permit will be made at that time. 

Ultimately, this sewage flow will be conveyed to the Hyperion 

Water Reclamation Plant, which has sufficient capacity for the 

project.” (Emphasis added.)

In response to LASAN’s comment, the City stated that “the 

comment includes information about sewer availability and

provides the current approximate flow level and design capacities 

of the local sewer system. The commenter indicated that the 

sewer system might be able to accommodate the total flow of the 

Project, and that further detailed gauging and evaluation will be 

needed as part of the permit process. The commenter also 

indicates that the sewage from the Project will be conveyed to the 

Hyperion Treatment Plant, which has sufficient capacity to 

accommodate the Project. The comment validates the information 

provided in the draft EIR. No additional analysis is necessary.”

On March 19, 2018, Petitioners objected to the FEIR’s 

statement that “no further analysis is necessary” of sewage

capacity. “Clearly further analysis is required, as [LASAN] 

concludes that analysis is required. There are few more basic 

environmental issues than the proper disposal of sewage. It is 

well established that when a project will create a need for 

additional sewage capacity, the CEQA document must analyze 

that impact, including how sewage will be transported and 

treated. The Project should cover its fair share of the costs of any 

sewage upgrades that may be required. (Sundstrom v. County of 

Mendocino (1988) 202 Cal.App.3d 296, 307 [(Sundstrom)].) The 

EIR is legally inadequate for failing to respond substantively to 

[LASAN’s] comment and failing to conduct the required analysis 

and mitigation of the Project’s sewage impacts.”
44

Nonetheless, on April 26, 2018, the City’s Planning 

Department rejected any challenge to the adequacy of the sewer 

analysis, finding LASAN stated that “the sewer capacity is 

adequate for the project.” The FEIR found “the sewer system 

might be able to accommodate the total flow of the project, and [ ]

further detailed gauging and evaluation will be needed as part of 

the permit process. Comment Letter 5 in the Final EIR also 

indicates that the sewage from the project would be conveyed to 

the Hyperion Treatment Plant, which has sufficient capacity to 

accommodate the project.” Thus, the Planning Department 

concluded that LASAN had in fact validated the information 

provided in the DEIR. 

The trial court found the City’s response to LASAN’s 

comment in the DEIR inadequate because the City “failed to fully 

analyze the sewage impacts from a lack of local capacity,”

resulting in “an improper deferral of an environmental 

assessment.”

B. Discussion.

The City contends the response to LASAN’s comment was 

adequate under section 21091, subdivision (d)(2)(B) and 

Guidelines section 15088 because: (1) LASAN in fact did not have 

concerns because the Hyperion Plant had sufficient capacity for 

the Project’s wastewater, and the local infrastructure “might”

have capacity to transport the Project’s wastewater to the 

Hyperion Plant; (2) LASAN did not request the City to undertake 

additional analysis at the time of the DEIR, instead requiring 

“‘further detailed gauging and evaluation’ of the sewer lines ‘as 

part of the permit process’”; and (3) the City’s response that there 
45

was sufficient capacity at Hyperion Plant “validates the 

information provided in the Draft EIR.”

Section 21091, subdivision (d) requires the lead agency to 

consider comments received on a draft EIR. The agency must 

evaluate the comments and respond in writing. (§ 21021, subd. 

(d)(2)(A).) The response “shall describe the disposition of each 

significant environmental issue that is raised by commenters. 

The responses shall be prepared consistent with Section 15088[.]”

(§ 21021, subd. (d)(2)(B).) Guidelines, section 15088 requires in 

relevant part that “[t]here must be good faith, reasoned analysis 

in response. Conclusory statements unsupported by factual 

information will not suffice. The level of detail contained in the 

response, however, may correspond to the level of detail provided 

in the comment[.]” (Guidelines, § 15088, subd. (c); King & 

Gardiner Farms LLC v. County of Kern (2020) 45 Cal.App.5th 

814, 879 (King & Gardiner).)

As explained in King & Gardiner, supra, 45 Cal.App.5th 

814, “[t]he requirement for a ‘reasoned analysis’ is satisfied when 

the lead agency ‘particularly set[s] forth in detail the reasons why 

the particular comments and objections were rejected.’ [Citation.] 

The requirement for a detailed statement is designed to promote 

the integrity of the process by preventing stubborn problems or 

serious criticism from being swept under the rug. [Citation.] Also, 

conclusory statements afford no basis for a comparison of the 

problems involved with the mitigation proposed by the agency 

and the mitigation proposed in comments. [Citation.] Despite the 

requirements for details and a reasoned analysis, agencies 

‘generally have considerable leeway’ regarding their response to a 

public comment. [Citation.]” (Id. at p. 880.)
46

Here, we conclude that the City’s response to LASAN’s 

comment was adequate. In addition to verifying the Hyperion 

Plant has sufficient capacity for the Project, LASAN noted that 

the Project might require additional local sewer line capacity, and

further study would be required to determine where to connect to 

the local sewer trunk lines. LASAN made clear it would 

determine during the permitting process whether additional local 

sewer line capacity would be required to service the additional 

residential units being proposed, and that if required, additional 

capacity would be constructed at the developer’s expense. “If the 

public sewer has insufficient capacity then the developer will be 

required to build sewer lines to a point in the sewer system with 

sufficient capacity. A final approval for sewer capacity and 

connection permit will be made at that time.” Although LASAN’s 

original comments were directed at the original 422-unit project, 

they would apply also to the 623-unit Revised Project. 

There is no evidence in the record that any needed local 

sewer construction work would cause any environmental 

problems, other than possible temporary traffic delays that might 

be occasioned by opening streets for sewer line upgrades. That is 

an insufficient reason to require additional environmental review 

or invalidate the City's approvals of the revised project.
47

DISPOSITION

The judgment of the Superior Court is reversed. Appellants 

are to recover their costs on appeal.

CURREY, J. 

We concur: 

MANELLA, P.J. 

MICON, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.
1

Filed 3/30/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SOUTHWEST REGIONAL COUNCIL OF 

CARPENTERS et al.,

 Plaintiffs and Respondents,

v.

CITY OF LOS ANGELES et al.,

Defendants and Appellants;

THE ICON AT PANORAMA, LLC,

Real Party in Interest and 

Appellant.

B301374

(Los Angeles County

Super. Ct. No. 

BS175189)

ORDER 

CERTIFYING 

OPINION FOR 

PUBLICATION AND 

DENYING 

PETITION FOR 

REHEARING

[NO CHANGE IN

JUDGMENT]

THE COURT:

The opinion in the above-entitled matter, filed on

March 7, 2022, was not certified for publication in the Official

Reports. For good cause it now appears that the opinion should

be certified for publication in its entirety in the Official Reports 

and it is so ordered.
2

There is no change in judgment.

The petition for rehearing is denied.

____________________________________________________________ 

MANELLA, P.J., CURREY, J., MICON, J.*

*

Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.