Filed 5/20/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BANNING RANCH CONSERVANCY,

 Plaintiff and Appellant,

v.

CITY OF NEWPORT BEACH et al.,

 Defendants and Appellants;

NEWPORT BANNING RANCH LLC et 

al.,

 Real Parties in Interest and Appellants.

 G049691

 (Super. Ct. No. 30-2012-00593557)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Robert 

Louis Becking, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.

Office of the City Attorney for the City of Newport Beach, Aaron Harp, 

City Attorney and Leonie Mulvihill, Assistant City Attorney; Remy Moose Manley, 

Whitman F. Manley and Jennifer S. Holman for Defendants and Appellants.

Leibold McClendon & Mann and John G. McClendon for Plaintiff and 

Appellant.
2

Manatt, Phelps & Phillips, Susan K. Hori and Benjamin G. Shatz for Real 

Parties in Interest and Appellants.

Kamala D. Harris, Attorney General, John A. Saurenman, Assistant 

Attorney General, and Jamee Jordan Patterson, Deputy Attorney General, for California 

Coastal Commission as Amicus Curiae.

 

Banning Ranch consists of approximately 400 acres of largely undeveloped 

coastal property, with active oilfield facilities and operations dispersed thereon. Project 

proponents

1

seek to develop one-fourth of Banning Ranch for residential and commercial 

purposes, and to preserve the remaining acreage as open space and parks, removing and 

remediating much of the oil production equipment and facilities (the Project). The City 

of Newport Beach and its City Council (collectively the City) approved the Project. 

Banning Ranch Conservancy (the Conservancy), “a community-based organization 

dedicated to the preservation, acquisition, conservation and management of the entire 

Banning Ranch as a permanent public open space, park, and coastal nature preserve,” 

filed a mandamus action against the City. 

The trial court agreed with the Conservancy’s claim that the City violated 

the Planning and Zoning Law (Gov. Code, § 65000 et seq.) and its own general plan by 

its alleged failure to adequately coordinate with the California Coastal Commission

before its approval of the Project. On the other hand, the court rejected the 

Conservancy’s claim that the City violated the California Environmental Quality Act 

(CEQA; Pub. Resources Code, § 21000 et seq.) by failing to identify in the 

environmental impact report (EIR) the “environmentally sensitive habitat areas”

 

1

Project proponents are real parties in interest Newport Banning Ranch 

LLC, Aera Energy LLC, and Cherokee Newport Beach, LLC. 
3

(ESHAs) — a defined term in the California Coastal Act of 1976 (Coastal Act; Pub. 

Resources Code, § 30000 et seq.). All interested parties appealed. We agree with the

court’s CEQA ruling but conclude the court erred by finding the City violated its general 

plan. We therefore reverse the judgment to the extent it provides for mandamus relief to 

the Conservancy.

FACTS

2

We describe in this section: (1) the City’s general plan, as it pertained to 

Banning Ranch; (2) the City’s coastal land use plan, which, by its own terms, did not 

apply to Banning Ranch; (3) the proposed Project; (4) the draft EIR; (5) The City’s 

response to comments and final EIR; (6) the City’s approval of the Project; and (7) the 

procedural history of this action. Keep in mind the primary legal disputes: (a) What 

actions were required of the City vis-à-vis the Coastal Commission, prior to Project 

approval, regarding the decision whether to develop, preserve, or restore particular 

portions of Banning Ranch; and (b) Was the City required to designate ESHAs in the 

EIR?

The City’s General Plan, as it Pertains to Banning Ranch

“Each planning agency shall prepare and the legislative body of each 

county and city shall adopt a comprehensive, long-term general plan for the physical 

 

2

Collectively, the parties’ thorough, well-researched “briefs” exceed 300 

pages. The City’s appendix features 1,489 pages and the Conservancy’s appendix adds 

98 pages. The electronic administrative record totals a whopping 49,046 pages. We have 

striven to limit our recitation of facts to those strictly necessary to the analysis of the 

issues before us and to refrain from discussing unnecessary background material and the 

parties’ arguments in the alternative. We assure the parties, however, that we appreciate 

their diligence in bringing all potentially relevant materials and issues to our attention.
4

development of the county or city, and of any land outside its boundaries which in the 

planning agency’s judgment bears relation to its planning.” (Gov. Code, § 65300.) The 

general plan adopted by a legislative body is “a ‘“constitution” for future development’ 

[citation] located at the top of ‘the hierarchy of local government law regulating land use’ 

[citation].” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 773.) “The planning 

law . . . compels cities and counties to undergo the discipline of drafting a master plan to 

guide future local land use decisions.” (Ibid.)

The City’s 2006 general plan recognizes Banning Ranch as a distinct 

“[d]istrict” within its “sphere of influence.”

3

The general plan acknowledges both the 

damage done by longstanding (“at least 75 years”) use of Banning Ranch for oil 

extraction activities and the value of Banning Ranch as a wildlife habitat and open space 

resource for citizens. The environmental value of the “diverse habitats” contained within 

Banning Ranch varies. Some of Banning Ranch (particularly the northwestern portion) 

has a “high biological resource value”; other segments are of lesser environmental 

importance. 

The general plan notes resident support for the preservation of all of

Banning Ranch as open space or, alternatively, the limited development of Banning 

Ranch if necessary “to help fund preservation of the majority of the property as open 

space.” A highlighted “Policy Overview” section states as follows: “The General Plan 

prioritizes the acquisition of Banning Ranch as an open space amenity for the community 

and region. Oil operations would be consolidated, wetlands restored, nature education 

and interpretive facilities provided, and an active park developed containing playfields 

and other facilities to serve residents of adjoining neighborhoods. [¶] Should the 

 

3

The vast majority of Banning Ranch (361 acres) is within the jurisdiction of 

unincorporated Orange County; the remaining 40 acres are within the City. Nonetheless, 

all of Banning Ranch falls within the City’s “‘sphere of influence’” and is therefore the 

appropriate subject of the City’s general plan. (See Merritt v. City of Pleasanton (2001) 

89 Cal.App.4th 1032, 1034; Gov. Code, §§ 65300, 65859, subd. (a).)
5

property not be fully acquired as open space, the Plan provides for the development of a 

concentrated mixed-use residential village that retains the majority of the property as 

open space. . . . While the Plan indicates the maximum intensity of development that 

would be allowed on the property, this will ultimately be determined through permitting 

processes that are required to satisfy state and federal environmental regulatory 

requirements.” 

Building on its stated policy preferences, the general plan identifies two 

alternative land use “Goal[s].”4 The first goal, “LU 6.3,” is “[p]referably a protected 

open space amenity, with restored wetlands and habitat areas, as well as active 

community parklands to serve adjoining neighborhoods.” The second goal, “LU 6.4,” is 

a backup option: “If acquisition for open space is not successful, a high-quality 

residential community with supporting uses that provides revenue to restore and protect 

wetlands and important habitats.” 

Each alternative goal features a “Policies”5section beneath the goal. The 

policies in support of Goal LU 6.3 are simple. The first, described as a “LAND USES” 

policy and entitled “Primary Use,” declares the intended use of Banning Ranch to be 

open space. A “STRATEGY” listed underneath is entitled “Acquisition for Open Space” 

and announces support for the acquisition of Banning Ranch by the City through a variety 

of possible funding mechanisms. Both the land uses and strategy sections cross-reference 

several implementation actions,

6

described elsewhere in the general plan.

 

4

According to the general plan, “Goals describe ideal future conditions for a 

particular topic, such as for Banning Ranch . . . . Goals tend to be very general and 

broad.” 

5

According to the general plan, “Policies provide guidance to assist the City 

as it makes decisions relating to each goal. Some policies include guidelines or standards 

against which decisions can be evaluated.” 

6

According to the general plan, “Implementation Actions identify the 
6

The Policies listed beneath Goal LU 6.4 are more detailed. The “LAND 

USES” section entitled, “Alternative Use,” describes the limited development of a 

residential village, “with a majority of the property preserved as open space.” Next 

follows nine separate policies setting forth requirements pertaining to development 

density, capacity, design, and methods.

7

A “STRATEGY” also requires “the preparation 

of a master development or specific plan for any development on the Banning Ranch 

specifying lands to be developed, preserved, and restored, land uses to be permitted, 

parcelization, roadway and infrastructure improvements, landscape and streetscape 

improvements, development regulations, architectural design and landscape guidelines, 

exterior lighting guidelines, processes for oil operations consolidation, habitat 

preservation and restoration plan, sustainability practices plan, financial implementation, 

and other appropriate elements.” Various implementation actions were also referenced 

throughout this section.

8

The general plan then announces “Policies Pertaining to Both Land Use

Options (Goals 6.3 and 6.4).” The first three policies pertain to “PERMITTED USES” 

and discuss oil operations, an active community park, and the restoration of wetlands and 

 

specific steps to be taken by the City to implement the policies. They may include 

revisions of current codes and ordinances, plans and capital improvements, programs, 

financing, and other measures that should be assigned to different City departments.” 

7

Specific limits on development include a maximum of 1,375 residential 

units, a maximum of 75,000 square feet of retail commercial uses, and a maximum of 75 

rooms in a facility offering overnight accommodations. 

8

In addition, section 10.9 of the natural resources element of the general plan 

(entitled “Development on Banning Ranch”), provides: “Protect the sensitive and rare 

resources that occur on Banning Ranch. If future development is permitted, require that 

an assessment be prepared by a qualified biologist that delineates sensitive and rare 

habitat and wildlife corridors. Require that development be concentrated to protect 

biological resources and coastal bluffs, and structures designed to not be intrusive on the 

surrounding landscape. Require the restoration or mitigation of any sensitive or rare 

habitat areas that are affected by future development.”
7

wildlife habitat. The fourth and fifth policies pertain to “DESIGN AND 

DEVELOPMENT” in connection with the preservation of environmental resources and 

the public’s views.

The focus of this appeal as it relates to the general plan is the final section 

of the land use discussion of Banning Ranch, listed under the “Policies Pertaining to Both 

Land Use Options,” but designated specifically as a “STRATEGY,” a term not defined in 

the general plan. We quote this section in its entirety. “LU 6.5.6 [¶] Work with 

appropriate state and federal agencies to identify wetlands and habitats to be preserved 

and/or restored and those on which development will be permitted.” The citations at the 

end of the quote refer to Implementation Actions 14.7 and 14.11, which are listed 

elsewhere in the general plan. Implementation Action 14.7 is entitled “Coordinate with 

the California Resources Agency, Department of Fish and Game,” and describes various 

issues on which the City should either “consult[],” “support,” or “cooperate with” this 

agency. Implementation Action 14.11 is entitled, “California Public Utilities 

Commission” (PUC) and states that the City “shall work with the PUC in obtaining 

funding and implementing the undergrounding of remaining overhead utilities.” 

Implementation Action 14.6 is conspicuous by its absence from LU 6.5.6

and the rest of the section of the general plan pertaining specifically to Banning Ranch. 

Implementation Action 14.6 is entitled “Coordinate with California Coastal 

Commission.” Its text reads: “The California Coastal Commission is responsible for the 

implementation of the California Coastal Act of 1976. As described [elsewhere in the 

general plan], the City’s Local Coastal Program’s (LCP) Land Use Plan (CLUP) had 

been certified at the time of the adoption of the updated General Plan. The City shall 

work with the Coastal Commission to amend the CLUP to be consistent with the General 

Plan and pursue certification of the Implementation Plan. The City shall ensure that on 

certification, applications for development shall be reviewed by the City for consistency 

with the certified LCP and California Coastal Act of 1976.”
8

The City’s Coastal Land Use Plan, Which Specifically Excludes Banning Ranch

Pursuant to the Coastal Act, the Coastal “Commission is required to protect 

the coastal zone’s delicately balanced ecosystem.” (Bolsa Chica Land Trust v. Superior 

Court (1999) 71 Cal.App.4th 493, 506 (Bolsa Chica).) Banning Ranch is within the 

“‘[c]oastal zone’” (Pub. Resources Code, § 30103) and is therefore subject to the Coastal 

Commission’s jurisdiction. 

Among other things, the Coastal Act “provides heightened protection to” 

ESHAs within the coastal zone. (Bolsa Chica, supra, 71 Cal.App.4th at p. 506.) 

“‘Environmentally sensitive area’ means any area in which plant or animal life or their 

habitats are either rare or especially valuable because of their special nature or role in an 

ecosystem and which could be easily disturbed or degraded by human activities and 

developments.” (Pub. Resources Code, § 30107.5.) “Environmentally sensitive habitat 

areas shall be protected against any significant disruption of habitat values, and only uses 

dependent on those resources shall be allowed within those areas.” (Pub. Resources

Code, § 30240, subd. (a).) “Development in areas adjacent to environmentally sensitive 

habitat areas . . . shall be sited and designed to prevent impacts which would significantly 

degrade those areas, and shall be compatible with the continuance of those habitat . . . 

areas.” (Pub. Resources Code, § 30240, subd. (b).)

“A combination of local land use planning procedures and enforcement to 

achieve maximum responsiveness to local conditions, accountability, and public 

accessibility, as well as continued state coastal planning and management through a state 

coastal commission are relied upon to insure conformity with the provisions of the act 

[citation]. Therefore, all local governments lying in whole or in part within the coastal 

zone had to prepare and submit to the Commission a local coastal plan (LCP) [citation]. 

The LCP consists of a local government’s ‘(a) land use plans, (b) zoning ordinances, 

(c) zoning district maps, and (d) within sensitive coastal resources areas, other 

implementing actions, . . . .’ [Citation.] The precise content of each LCP is determined 
9

by the local government in full consultation with the Commission [citation] and must 

meet the requirements of, and implement the provisions and policies of [the act] at the 

local level [citation].” (Yost v. Thomas (1984) 36 Cal.3d 561, 566.)

In 2005, the City obtained Coastal Commission approval of its coastal land 

use plan (Pub. Resources Code, § 30108.5) — a key facet of its local coastal program 

(Pub. Resources Code, § 30108.6). The City has not submitted an implementation plan to 

the Coastal Commission, however, so it was not able to issue coastal development 

permits on its own. Hence, all new applications for coastal development permits must be 

processed by the Coastal Commission. 

Despite its inability to issue coastal development permits, “[t]he City 

reviews pending development projects for consistency with the General Plan, Zoning 

regulations, and the [coastal land use plan], before an applicant may file for a [coastal 

development permit] with the Coastal Commission.” And the City’s coastal land use 

plan, Policies 4.1.1-1, states: “Define any area in which plant or animal life or their 

habitats are either rare or especially valuable because of their special nature or role in an 

ecosystem and which could be easily disturbed or degraded by human activities and 

developments as an [ESHA].” The City’s coastal land use plan sets forth criteria for 

determining if a habitat is an ESHA, and includes a presumption that habitat meeting the 

prescribed criteria is ESHA, subject to rebuttal by “site-specific evidence.” 

Banning Ranch, however, is specifically excluded from the scope of the 

CLUP. “A Deferred Certification Area . . . refers to an area where both the land use plan 

and implementing actions plan have been deferred to some future date in order to avoid 

delay in certifying the balance of the [coastal land use plan]. The Coastal Commission 

retains permit jurisdiction in all deferred certification areas. [¶] Newport Banning Ranch 

is a [Deferred Certification Area].” The City’s coastal land use plan policies “[d]esignate 

the Banning Ranch property as an area of deferred certification until such time as the 

future land uses for the property are resolved and policies are adopted to address the 
10

future of the oil and gas operations and the protection of the coastal resources on the 

property.”

In sum, the City would ordinarily be obligated under its coastal land use 

plan to identify ESHAs in its review of a coastal project. But the City’s coastal land use 

plan explicitly excludes Banning Ranch from its scope. 

The City Does Not Acquire Banning Ranch; Instead, Development is Proposed

As one can well imagine, 400 acres of coastal property in Orange County 

does not come cheap. A pricing study commissioned by the City indicated it could take 

between $184 million to $211 million to acquire Banning Ranch, although the amount 

might be reduced to a range of $138 million to $158 million if the entire property were 

purchased in a single transaction. These purchase prices would not include the cost of oil 

field clean up and remediation. After efforts to obtain funding from a variety of sources 

foundered, the City ultimately concluded that acquisition of Banning Ranch for 

preservation as open space in its entirety (i.e., the preferred outcome specified in the 

general plan) was infeasible. 

Parallel with the City’s exploration of the possibility of acquiring Banning

Ranch, a development proposal was formally submitted to the City in August 2008.

9

The 

proposal precisely tracks upper limits for development set forth in the general plan (e.g., 

number of residential units, amount of commercial space) and indicates that the majority 

of Banning Ranch will be preserved as open space. The proposal includes a planned 

community development document, designed to address the City’s strategy to develop a 

master plan for Banning Ranch’s development. 

 

9

The general plan endorses the dual-track pursuit of development 

“entitlement[s] and permits for a residential village during the time allowed for 

acquisition as open space.” 
11

The proposal “documented and mapped the extensive field survey work 

that the environmental team has done on potential special status habitats (potential 

ESHA), as demonstrated in the Biological Technical Report.” The referenced biological 

technical report, prepared by Glenn Lukos Associates, Inc., identifies “potential ESHA in 

accordance with the City’s Coastal Land Use Policies.”10A map of Banning Ranch 

identifying potential ESHA and non-ESHA areas was also included with the report. 

Draft Environmental Impact Report

“With narrow exceptions, CEQA requires an EIR whenever a public agency 

proposes to approve or to carry out a project that may have a significant effect on the 

environment.” (Laurel Heights Improvement Assn. v. Regents of University of California

(1988) 47 Cal.3d 376, 390 (Laurel Heights).) “The Legislature has made clear that an 

EIR is an ‘informational document’ and that ‘[t]he purpose of an environmental impact 

report is 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 a project might be minimized; and to indicate 

alternatives to such a project.’” (Id. at p. 391.) “The EIR is the primary means of 

achieving the Legislature’s considered declaration that it is the policy of this state to ‘take 

all action necessary to protect, rehabilitate, and enhance the environmental quality of the 

state.’ [Citation.] The EIR is therefore ‘the heart of CEQA.’” (Id. at p. 392.)

 

10 This 2008 “draft” biological technical report was not included in the 

administrative record prepared by the City. The court granted the City’s motion to strike 

the document from the record, finding fault with the Conservancy’s tardy attempt to 

lodge this document rather than filing a timely motion to augment the administrative 

record. We sidestep the issue of whether the court’s ruling was proper by considering 

this document to be part of the record. In our view, the inclusion of this document in the 

record makes no difference to the outcome of this appeal. Moreover, by considering the 

excluded document, we avoid the appearance that the City gained an advantage in this 

case by excluding (whether intentionally or unintentionally) a document from the 

administrative record.
12

“Under CEQA, the public is notified that a draft EIR is being prepared 

[citations], and the draft EIR is evaluated in light of comments received. [Citations.] The 

lead agency then prepares a final EIR incorporating comments on the draft EIR and the 

agency’s responses to significant environmental points raised in the review process. 

[Citations.] The lead agency must certify that the final EIR has been completed in 

compliance with CEQA and that the information in the final EIR was considered by the 

agency before approving the project. [Citation.] Before approving the project, the 

agency must also find either that the project’s significant environmental effects identified 

in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by 

the project’s benefits.” (Laurel Heights, supra, 47 Cal.3d at p. 391, fn. omitted.) 

A notice of preparation of an EIR concerning the Project was distributed in 

March 2009 to affected individuals and agencies, including the Coastal Commission. 

After years of study and preparation, a 1,400-page draft EIR, with 5,560 additional pages 

in the appendices, was completed in September 2011. 

The draft EIR devotes approximately 625 pages (including the biological 

technical report as an appendix) to the analysis of biological resources at Banning Ranch. 

This analysis is based on biological surveys conducted by BonTerra Consulting from 

2008 through 2011 and by Glenn Lukos Associates, Inc. (i.e., the same firm that 

submitted the biological technical report in 2008), from 1998 to 2002 and 2006 to 2011. 

The material in the draft EIR is longer and more detailed than the 2008 draft biological 

technical report. It breaks down to the hundredth of an acre the precise vegetation types 

at Banning Ranch. It features multiple, color-coded maps identifying the various forms 

of vegetation. The analysis likewise bores into details concerning the animal life in 

Banning Ranch, using text and maps to provide an in-depth view of wildlife at Banning 

Ranch. And the draft EIR analyzes the effects of the Project on habitat, special status 

species, and other biological resources, using charts and maps to illustrate the impacts 

described in the textual analysis. 
13

The draft EIR also describes the development proposal in depth, dividing 

the proposed uses of Banning Ranch down to the tenth of an acre. It specifies which oil 

production facilities and infrastructure would be removed, and which areas would 

continue to be used for oil production “on an interim basis.” It pinpoints the areas of 

Banning Ranch that would be used as natural open space, public parks, residences, and 

mixed-use. It provides for circulation and parking improvements. Maps of Banning 

Ranch illustrate the planned development with color-coding and detailed labeling. 

In discussing the Coastal Act, the draft EIR states: “The Project site is 

within the boundary of the Coastal Zone. . . . The Project is considered consistent with 

the applicable land use policies of the . . . Coastal Act. . . .” With regard to the Coastal 

Act’s general rule prohibiting development of ESHAs, “[s]ection 4.6.4 of this [draft EIR]

has identified and mapped the vegetation types and special status species occurrences 

known to occur within the Project Site. The Project and associated mitigation measures 

avoid, minimize, and compensate for the placement of development within these areas to 

prevent a substantial degradation of these areas or significantly disrupt habitat values. 

The determination of what areas would be regulated as ESHA would be made by the 

Coastal Commission as part of the [coastal development permit] process for the Project.” 

Thus, the draft EIR does not actually label sectors of Banning Ranch as

ESHA or potential ESHA. Instead, after noting Banning Ranch’s status as a deferred 

certification area within the City’s coastal land use plan, the draft EIR defers to the 

Coastal Commission the determination of whether and to what extent ESHAs are present 

at Banning Ranch. The draft EIR repeatedly notes that the Project cannot go forward 

without a coastal development permit from the Coastal Commission, something the City 

could not provide at the Banning Ranch site. Indeed, the draft EIR acknowledges that 

multiple other federal, state, and local agencies will need to approve the Project before it 

can proceed. 
14

Response to Comments and Final Environmental Impact Report

In March 2012, the final EIR was produced, collecting comments, 

responding to comments, issuing clarifications and revisions, and adopting additional 

appendices. These new components added approximately 2,200 pages to the draft EIR, 

bringing the EIR grand total to over 9,000 pages. We focus solely on those aspects 

pertinent to the issues raised in this appeal.

Negative comments concerning the draft EIR’s failure to designate ESHAs

were received from both the Conservancy’s members and Coastal Commission staff. We 

highlight several of the objections raised in the Coastal Commission’s letter. The letter 

first objects to the procedure contemplated by the City, recommending that the City 

consider the Project “in the context of a Local Coastal Program review” rather than the 

current plan to submit the Project for a coastal development permit without having 

undergone the initial review. Noting “the scope and complexity of the proposed project,” 

the letter suggests the City’s proposed process would prove “unworkable.” The letter 

requests “that the EIR process incorporate a determination of probable ESHA areas and 

their required buffers” and further requests that the Coastal Commission’s staff biologists 

have the opportunity to review such designations prior to EIR finalization. The letter 

opines that a “preliminary analysis” indicates the Project proposed in the draft EIR could 

not be compatible with the Coastal Act, in part because a planned “four lane arterial road 

in the proposed location would result in significant, unavoidable impacts to ESHA.”

11

 

11 The Conservancy suggests that the City’s motivation for declining to 

identify ESHAs in the draft EIR stemmed from its desire to build roads that would 

necessarily infringe on ESHAs. In February 2009 correspondence, Glenn Lukos 

Associates, Inc., noted that changes to the habitat restoration plan for Banning Ranch 

would be required as a result of “the proposed road circulation network requested by the 

City . . . as a public benefit. . . . [T]he changes associated with the Proposed Project 

would significantly impact scrub, wetlands, and riparian habitat that would be considered 

[ESHA] pursuant to the City’s Coastal Land Use Plan . . . Policies as well as the [Coastal 

Act]. It is important to note that impacts to ESHA are prohibited . . . except for certain 

allowable uses, and the proposed [road] connectors would be problematic to the [Coastal 
15

The City responded to the critique that it should designate ESHAs as part of 

the CEQA process. The “purpose of an EIR is to analyze the impacts of a proposed 

project on the physical environment. The Draft EIR analyzes the proposed Project and its 

impact on biological resources . . . . In so doing, the City has fulfilled its obligation 

under CEQA to analyze the significant impacts of a project on the physical environment. 

To what extent these areas constitute ESHA — a concept unique to the Coastal Act — is 

a finding within the discretion of the Coastal Commission, or a local agency as part of its 

local coastal program certification process. While the Draft EIR must identify a project’s 

impact on the environment, including biological resources such as sensitive species and 

sensitive native vegetation, it is not required to make a finding pursuant to the Coastal 

Act. That would be within the discretion and authority of the Coastal Commission when 

this Project comes before them. [¶] For other coastal projects, the Coastal Commission 

has identified a variety of habitats and resources as ESHA which include, but are not 

limited to, coastal bluff scrub, coastal sage scrub, riparian scrub, freshwater marsh, and 

habitat occupied by listed species. These habitats and resource, and many others, have 

been quantified, qualified, and graphically illustrated in the Draft EIR and supporting 

Biological Technical Report for the proposed Project. This technical information is 

available to the Coastal Commission for their consideration of ESHA in accordance with 

the Coastal Act.” 

In response to criticism that it should apply its coastal land use plan in the 

draft EIR, the City explained that Banning Ranch is not currently covered by the City’s 

coastal land use plan. “Consequently, the Applicant is proposing to apply for a Coastal 

 

Commission].” “The Proposed Project would include a north/south connection . . . that 

would cross through a large portion of project open space containing areas of ESHA as 

well as areas proposed for habitat restoration . . . .” 

The four lane arterial road extension is proposed as consistent with the 

Orange County Transportation Authority’s map of arterial networks. Included in the EIR 

is an analysis of an alternative that excludes the disputed road extension. 
16

Development Permit to implement its proposed Project. The Coastal Commission’s 

comments regarding the level of detail required for a Coastal Development Permit will be 

forwarded to the Applicant for its consideration in preparing its application to the Coastal 

Commission.” The City also acknowledged in an additional response to comments that 

the Coastal Commission had already “identified areas of ESHA on the Project site” in an 

unrelated proceeding — a .21-acre portion and a .46-acre portion — but reiterated that 

“the Coastal Commission has not made an ESHA determination for the remainder of” 

Banning Ranch. 

In short, the City stands by the position taken in the draft EIR: it is 

unnecessary for the City (whether under CEQA, the Coastal Act, or its own coastal land 

use plan) to identify ESHAs in the EIR. 

Approval of the Project

On July 23, 2012, the City held a public hearing on the Project. At the 

conclusion of the hearing, the City adopted a series of resolutions, which, taken together, 

amounted to approval of the Project. Among other things, the resolutions: (1) certified

the final EIR, (2) approved the Project’s master development plan (and related 

entitlement changes), (3) approved zoning changes to Banning Ranch, and (4) approved 

the development agreement between the City and Project proponents. 

The City found that the “Project would have direct and indirect impacts on 

habitat and special status species associated with oilfield remediation, grading, 

construction, and long-term use of the Project site. Grading activities could impact 

several sensitive natural communities on the Project site.” But the impact of the Project 

on the biological resources at Banning Ranch “is Less Than Significant as a result of the 

implementation” of mitigation measures. The City also found that the “Project is 

consistent with the goals and policies of the General Plan.” 
17

Procedural History of Mandamus Action

In August 2012, the Conservancy petitioned for a writ of mandate on the 

grounds that the EIR was legally inadequate and the City violated its own general plan by 

approving the Project. The Conservancy requested that the City’s approval of the Project 

be set aside and that the court order the City to comply with its legal obligations under 

CEQA and the Planning and Zoning Law. 

The court took the matter under submission after briefing and oral 

argument. It granted the petition for writ of mandate in part, based on its conclusion “that 

the General Plan Amendment implementing the Project, and the Project itself, as 

approved, is inconsistent with the General Plan, particularly [land use policies] 6.3 and 

6.4, and more specifically [land use policy] 6.5.6, in that the City failed to coordinate and 

work with the Coastal Commission in identifying which wetlands and habitats present in 

Banning Ranch would be preserved, restored or developed, prior to its approval of the 

Project.” The court’s analysis on this point was driven by California Native Plant 

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

The court denied relief to the Conservancy with regard to its CEQA 

allegations. The Conservancy’s primary argument was “that the City failed to identify 

potential ESHAs on the Project site and deal with that potentiality in the EIR. [The 

Conservancy] uses that as a basis for arguing: 1) that the EIR did not properly describe 

the baseline; 2) that the EIR improperly deferred the identification and imposition of 

mitigation measures; 3) that the EIR did not contain a proper description of the Project; 

4) that the EIR was based on incomplete data and analysis; 5) that the EIR had to be 

recirculated; and 6) that the EIR failed to adequately analyze alternatives.” The court 

cited Banning Ranch Conservancy v. City of Newport Beach (2012) 211 

Cal.App.4th 1209 (Banning Ranch I) in rejecting the notion that CEQA requires a city to 

predict in its EIR the ESHAs that will be designated by the Coastal Commission in the 

future. 
18

Judgment was entered and a peremptory writ of mandate issued in January 

2014. The writ of mandate stated in relevant part that the City “shall set aside and vacate 

all approvals relating to the Project except as to the approval of the environmental impact 

report and take no further steps toward approving or otherwise implementing the 

development of the Project site unless and until [the City] fully compl[ies] with Policy 

LU 6.5.6 in accordance with this Court’s aforementioned determination.”

DISCUSSION

Consistency of Project with General Plan

“We review decisions regarding consistency with a general plan under the 

arbitrary and capricious standard. These are quasi-legislative acts reviewed by ordinary 

mandamus, and the inquiry is whether the decision is arbitrary, capricious, entirely 

lacking in evidentiary support, unlawful, or procedurally unfair. [Citations.] Under this 

standard, we defer to an agency’s factual finding of consistency unless no reasonable 

person could have reached the same conclusion on the evidence before it.” (Endangered 

Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.) “‘It is, 

emphatically, not the role of the courts to micromanage these development decisions.’ 

[Citation.] Thus, as long as the City reasonably could have made a determination of 

consistency, the City’s decision must be upheld, regardless of whether we would have 

made that determination in the first instance.” (Native Plant, supra, 172 Cal.App.4th at 

p. 638.) We review the City’s decision and do not defer to the trial court. (Id. at p. 

637.)

12

 

12

The Conservancy argues our level of deference to the City should be 

reduced because the City’s general plan was endorsed by the voters in a referendum. A 

similar argument was rejected, persuasively, in San Francisco Tomorrow v. City and 

County of San Francisco (2014) 229 Cal.App.4th 498, 515-516. 
19

The primary general plan policy at issue is LU 6.5.6 (which can be 

described, consistent with the general plan, as a “policy,” a “strategy,” or both): 

“Coordination with State and Federal Agencies [¶] Work with appropriate state and 

federal agencies to identify wetlands and habitats to be preserved and/or restored and 

those on which development will be permitted.” Also of note is LU 6.4, the alternative 

policy allowing development, pursuant to which the general plan requires “the 

preparation of a master development or specific plan for any development on the Banning 

Ranch specifying lands to be developed, preserved, and restored . . . .” A master 

development plan was approved by the City; this plan (among other documents)

identifies lands to be developed, preserved, or restored as part of the Project.

The Conservancy’s claim, accepted by the court, is that the City neither 

coordinated nor worked with the Coastal Commission (an “appropriate” state agency in 

LU 6.5.6) to identify wetlands and other habitats to be preserved, restored, or developed. 

The Conservancy insists that the only reasonable interpretation of the general plan is that 

the City must work with the Coastal Commission to decide the appropriate uses of 

habitats before Project approval. Recall that the general plan states, “Policies provide 

guidance to assist the City as it makes decisions relating to each goal. Some policies

include guidelines or standards against which decisions can be evaluated.” (Italics 

added.) The Conservancy asserts that LU 6.5.6 is just such a policy, and that the City’s 

process leading up to the approval of the Project fell short of what LU 6.5.6 required, 

thereby making the Project inconsistent with the general plan. By the City’s own 

admission, the Project has not yet received Coastal Commission assent. To the contrary, 

Coastal Commission staff in their comments to the draft EIR criticized (at least based on 

their preliminary review of the Project) the City’s approach thus far (e.g., not analyzing 

the Project under the City’s coastal land use plan, not identifying ESHA in the EIR, and 

allowing road improvements through areas that include probable ESHA).
20

The City’s counterargument takes two tacks. First, the City marshals 

evidence of its interactions with federal and state agencies. The City distributed a Notice 

of Preparation of an EIR to a lengthy list of state agencies concerned with land use issues 

at Banning Ranch, including the Coastal Commission. Several of these agencies, 

including the Coastal Commission, provided comments to the City concerning the draft 

EIR. The National Marine Fisheries Service, a federal agency, attended a scoping 

meeting early in the environmental review process and provided oral comments. The 

United States Army Corps of Engineers concurred with a determination of its jurisdiction 

over certain wetlands at Banning Ranch. Consultation procedures under the Endangered 

Species Act were initiated with the United States Department of Fish and Wildlife. 

City staff members and consultants even met with Coastal Commission 

staff about the Project and responded in some measure to Coastal Commission concerns. 

An in-person meeting occurred on March 30, 2011 at which various aspects of the 

proposed Project were discussed. In April 2011, instructions were provided to a 

biological resource consultant “to beef up” the EIR in some respect to address Coastal 

Commission concerns. Coastal Commission staff again met in person in 2012 with 

“Banning Ranch rep[resentatives] and advised them that we were not satisfied by the 

response to our comments in the [draft] EIR and advised them that they will need to fully 

address those comments if/when the project is submitted to the Commission. Since then, 

some of our staff including our staff biologists have had a staff visit and I believe they 

underscored the need for further study during that site visit.” 

Much of this evidence can fairly be characterized as compliance, in part, 

with LU 6.5.6. The City certainly worked with federal and state agencies, including the 

Coastal Commission, before approving the Project. But none of this evidence addresses 

the lack of coordination with the Coastal Commission prior to Project approval on the 

Project’s identification of habitats for preservation, restoration, or development. Instead, 

the record seems clear that the Project’s choices as to habitat preservation, restoration, 
21

and development were made by the project proponents and the City. The Coastal 

Commission was certainly put on notice that the Project had been proposed and that an 

environmental review process had been initiated. The Coastal Commission (through its 

staff) took advantage of the opportunity to comment on the draft EIR and even met with 

Project proponents and the City on a few occasions. But it cannot fairly be said that the 

City worked with the Commission prior to Project approval to identify habitats for 

preservation, restoration, or development.

To this point, the City’s second contention is that the Conservancy’s 

interpretation of LU 6.5.6 is not the only reasonable interpretation, and that this court is 

required to defer to the City’s interpretation of its own general plan in making its 

consistency finding. To wit, the City suggests compliance with LU 6.5.6 is not limited to 

its conduct prior to Project approval. LU 6.5.6 does not say that the Coastal Commission 

(or its staff) must sign off on the land uses contemplated by the Project before the City 

approves the Project. Instead, LU 6.5.6 asserts a vague strategy to “work with” all 

pertinent state and federal agencies. There is no temporal cut off for the completion of 

this vague strategy.

The City asserts its process is perfectly legitimate under LU 6.5.6: (1) 

“[w]ork with” all interested agencies to the extent of notifying them of the Project, 

meeting with agency representatives upon request, and taking their views into 

consideration during the Project review process; (2) approve (or not) the Project after 

completing CEQA requirements and measuring the Project for consistency with the 

general plan; and (3) continue to “[w]ork with” agencies from whom additional approvals 

and permits are necessary, including the Coastal Commission, which might determine 

that ESHA at Banning Ranch requires the Project to be altered. According to the City, it 

was free under LU 6.5.6 to reject the preferred procedure suggested by the Coastal 

Commission’s comment letter, i.e.: (1) review the Project under the City’s coastal local 

use plan, notwithstanding Banning Ranch’s exclusion (as a deferred certification area) 
22

from this plan; (2) identify in the Project planning documents all ESHAs within Banning 

Ranch; (3) eliminate any development that would affect an ESHA; (4) continue 

coordinating with Coastal Commission staff until the Project was up to snuff in the

Coastal Commission staff’s opinion; and (5) approve (or not) the Project. 

In addition to its repeated acknowledgement that the Coastal Commission 

must provide a coastal development permit before the Project proceeds, the City also 

cites various mitigation measures included in the EIR as proof that it intends to “[w]ork 

with” the Coastal Commission in the future. Each of these measures references 

individual federal and state agencies (including the Coastal Commission) that must 

approve of the implementation plan for these measures to go into effect. 

Our review of the general plan and the record in this case leads us to

conclude that the City’s interpretation of the process contemplated by LU 6.5.6 and its 

ensuing consistency finding are reasonable. This “strategy” (or policy) is simply too 

vague on its face to impose a mandatory requirement on the City that it complete an 

unspecified level of coordination with the Coastal Commission before the City’s approval 

of the Project (e.g., by complying, in part or in full, with the suggestions provided by the 

Coastal Commission in its comment letter). Given the lack of measurable standards as to 

the extent or timing of the coordination required, it was rational for the City to conclude 

that LU 6.5.6 was designed as a helpful reminder of the City’s legal obligations to “work 

with” all necessary agencies in the course of developing Banning Ranch.

13

 This “work” 

 

13

The trial court thought that LU 6.5.6 logically must mean something 

beyond simply complying with preexisting legal obligations (e.g., to notify appropriate 

agencies about the Project, to obtain necessary permits), else what would be the point of 

including it in the general plan? (See, e.g., Pub. Resources Code, §§ 30600, 30604 

[coastal development permit issuance by Coastal Commission]; Cal. Code Regs., tit. 14, 

§ 15086, subd. (a) [lead agency shall consult with and request comments from other 

agencies following preparation of draft EIR].) But not every sentence in a general plan 

creates a new legal obligation. Indeed, the City’s general plan implicitly acknowledges 

that not every “Policy” creates guidelines or standards against which the City’s behavior 

can be measured. 
23

would, of course, center on the question of which segments of Banning Ranch would be 

preserved, which would be restored, and which would be developed. But it was up to the 

City to decide precisely how this strategy of working with concerned agencies would be 

implemented. The City’s decision to forego additional engagement with the Coastal 

Commission prior to Project approval did not make the Project inconsistent with the 

general plan. 

The trial court ruled to the contrary, applying what it deemed to be binding 

precedent. (See Native Plant, supra, 172 Cal.App.4th 603.) Native Plant held that 

Rancho Cordova violated its general plan by its failure to sufficiently coordinate with the 

United States Fish and Wildlife Service (the Service) in designing mitigation measures in 

connection with a development project. (Id. at p. 608.)

The Native Plant project concerned a 530 acre site at which a mix of 

development and preservation was proposed. (Native Plant, supra, 172 Cal.App.4th at p. 

608.) The project site featured vernal pools and seasonal wetland vegetation, which 

 

We have not been pointed to any authority indicating that the City is 

required under the Coastal Act to identify ESHA in a project not covered by a coastal 

land use plan. (See, e.g., Cal. Code Regs., tit. 14, § 13052 [setting forth minimum 

“preliminary approvals” before request for coastal development permit will be accepted 

for filing; list of requirements does not include ESHA designations].) The closest the 

Conservancy comes to supporting such a claim is the following section from the Coastal 

Act: “The commission shall, to the maximum extent feasible, assist local governments . . 

. . Similarly, every public agency, including . . . local governments, shall cooperate with 

the commission and shall, to the extent their resources permit, provide any advice, 

assistance, or information the commission may require to perform its duties and to more 

effectively exercise its authority.” (Pub. Resources Code, § 30336.) The Conservancy 

reasons that once the Commission requested the City to do something in its comment 

letter, it was the City’s obligation to follow up on the request. We agree with the City 

that an ESHA designation is a legal conclusion, not the sort of cooperation mandated by 

Public Resources Code section 30336. There is no authority for the proposition that the 

City violated its statutory duty to cooperate with the Coastal Commission by not 

including ESHA designations in its EIR. And regardless, there is not a Coastal Act claim 

before this court. This case is about the City’s obligations under the general plan and 

CEQA.
24

provided “habitats for two species of vernal pool crustaceans — vernal pool fairy shrimp 

and vernal pool tadpole shrimp — that are listed as threatened and endangered 

(respectively) under the federal Endangered Species Act of 1973.” (Id. at p. 609.) In the 

spring of 2004, the Service, in conjunction with other federal agencies, jointly created a 

“conceptual-level strategy” composed of principles and standards designed to protect 

aquatic resource habitats at the site. (Id. at p. 609.) Both after the proposed project was 

announced in September 2004 and after the release of the draft EIR in October 2005, the 

Service commented that the proposed project appeared to be inconsistent with the 

conceptual-level strategy endorsed by the Service. (Id. at pp. 610-612.) Rancho Cordova 

nonetheless approved the project. (Id. at p. 612.)

Among other contentions, it was argued that Rancho Cordova violated its 

general plan by failing to comply with Policy NR 1.7, which “provides that ‘[p]rior to 

project approval the City shall require a biological resources evaluation for private and 

public development projects in areas identified to contain or possibly contain listed plant 

and/or wildlife species based upon the City’s biological resource mapping provided in the 

General Plan EIR or other technical materials.’ To implement this policy, Action 

NR.1.7.1 provides that ‘[f]or those areas in which special-status species are found or 

likely to occur or where the presence of species can be reasonably inferred, the City shall

require mitigation of impacts to those species that ensure that the project does not 

contribute to the decline of the affected species populations in the region to the extent 

that their decline would impact the viability of the regional population. Mitigation shall

be designed by the City in coordination with the . . . Service . . . and the California 

Department of Fish and Game (CDFG), and shall emphasize a multi-species approach to 

the maximum extent feasible. This may include development or participation in a habitat 

conservation plan.’” (Native Plant, supra, 172 Cal.App.4th at p. 635.)

It was undisputed that the site contained special-status species. (Native 

Plant, supra, 172 Cal.App.4th at p. 639.) Rancho Cordova “[u]nquestionably” included 
25

mitigation provisions in the project. (Id. at p. 640.) And there was sufficient evidence in 

the record for Rancho Cordova to reasonably conclude that its mitigation measures were 

consistent with the substantive requirements set forth in Action NR 1.7.1. (Ibid.) But 

Rancho Cordova did not coordinate with the Service in designing the project’s mitigation 

measures. (Id. at pp. 640-642.) Rancho Cordova posited that its obligation to coordinate 

with the Service was met by consulting with the Service, i.e., by soliciting comments to 

the project and draft EIR, by considering those comments, and by responding to 

comments in the final EIR. (Id. at p. 641.) But, given the language in its general plan, 

the appellate court held it was unreasonable for Rancho Cordova to construe the words 

“coordination with” as meaning mere consultation. (Ibid.) “[W]e cannot reasonably 

deem this ‘coordination’ requirement satisfied by the mere solicitation and rejection of 

input from the agencies with which [Rancho Cordova] is required to coordinate the 

design of mitigation measures for the Project. Although our standard of review . . . is 

highly deferential, ‘deference is not abdication.’” (Id. at p. 642.)

The Conservancy is correct that the City’s level of interaction thus far with 

the Coastal Commission was closer to consultation than coordination, as defined in 

Native Plant. The Conservancy is also correct that, like the Native Plant case, the lack of 

coordination here could be counterproductive for the City in that the Coastal Commission 

could ultimately refuse to issue development permits. (See Native Plant, supra, 172 

Cal.App.4th at p. 642 [reasoning that the Service’s role in deciding whether the project 

would obtain a federal permit at the project site explained why the general plan would 

require pre-approval coordination with the Service].)
26

But the City’s LU 6.5.6 is not as clear as Rancho Cordova’s NR 1.7.1. In 

the context of discussing the substantive requirements for mitigation, NR 1.7.1 issues a 

specific command to Rancho Cordova to coordinate with a specific agency (“Mitigation 

shall be designed by the City in coordination with the . . . Service”) to accomplish a 

specific task (i.e., the design of the mitigation measures). (Native Plant, supra, 172 

Cal.App.4th at p. 635.) The mitigation at issue pertained to a biological resources 

evaluation that had to occur “prior to project approval.” (Cf. Endangered Habitats 

League, Inc. v. County of Orange, supra, 131 Cal.App.4th at pp. 793-796 [mitigation 

measures cannot be deferred to date beyond EIR certification].)

In contrast, LU 6.5.6 (entitled “Coordination with State and Federal 

Agencies”) does not compel coordination with the Coastal Commission prior to approval 

of the Project: “Work with appropriate state and federal agencies to identify wetlands 

and habitats to be preserved and/or restored and those on which development will be 

permitted.” The Coastal Commission is not mentioned in the text or in the referenced 

implementation actions. There is no indication in LU 6.5.6 that this “work” must be 

completed before the City approves the Project. Whereas coordination in design suggests 

work done together at the beginning of the process, coordination in identification can be

more naturally construed as an ongoing process. LU 6.5.6 is vague and ambiguous — the 

Conservancy’s position depends on inferences made after considering multiple sections 

of the general plan; NR 1.7.1 is more resistant to multiple interpretations as to the timing 

of coordination. (Cf. Families Unafraid to Uphold Rural etc. County v. Board of 

Supervisors (1998) 62 Cal.App.4th 1332, 1341 [county must comply with policy that is 

“fundamental . . . mandatory and anything but amorphous”].)

With that said, we acknowledge that Native Plant is not easily 

distinguished. Thus, to the extent the holding of Native Plant applies to this case, we 

reject its reasoning as incompatible with our deferential review of the City’s legislative 

acts. After acknowledging the limits of its review (Native Plant, supra, 172 
27

Cal.App.4th at pp. 637-638), the Native Plant court proceeded to fault the City for failing 

to give the proper interpretation to a vague term — “coordination with.” But, 

recognizing that the general plan itself did not make clear what “coordination with” 

meant in practical terms, the appellate court declined to give guidance as to what Rancho 

Cordova needed to do to comply with the coordination requirement. “[W]e do not read 

this ‘coordination’ requirement as ‘requir[ing] the City to subordinate itself to state and 

federal agencies by implementing their comments and taking their direction.’ At the 

same time, however, we cannot reasonably deem this ‘coordination’ requirement satisfied 

by the mere solicitation and rejection of input from the agencies with which the City is 

required to coordinate the design of mitigation measures for the Project.” (Id. at p. 642.) 

In other words, Rancho Cordova needed to do something in between consultation and 

capitulation. The appellate court declined to dictate the terms of the writ of mandate, 

leaving it to the trial court. (Id. at pp. 642-643.) Perhaps a good faith negotiation 

between Rancho Cordova and the Service should have occurred. Perhaps a minimum 

number of hours should have been devoted by Rancho Cordova toward reaching 

consensus with the Service. Perhaps the project developers should have been required to 

meet with the Service prior to submitting their project to Rancho Cordova. These might 

be good or bad ideas. But none of them were in the general plan. And any other specific 

requirement the trial court might have tried to impose would likewise by necessity be 

designed out of whole cloth.

The same problem played out here at the trial court. The writ of mandate 

issued by the court prevents the City from “approving or otherwise implementing the 

development of the Project site unless and until [the City] fully compl[ies] with Policy 

LU 6.5.6 in accordance with this Court’s aforementioned determination.” The 

aforementioned determination was that “the City failed to coordinate and work with 

the . . . Coastal Commission in identifying which wetlands and habitats present on the 

Project site would be preserved, restored or developed, prior to your approval of the 
28

Project.” The court does not explain what it means, in practical terms, to coordinate and 

work with the Coastal Commission prior to project approval. Presumably, it is something 

in between consultation and capitulation. But the lack of specific guidance in the general 

plan indicates to us that it is unreasonable to find the City’s view of LU 6.5.6 to be 

arbitrary. It is improper for courts to micromanage these sorts of finely tuned questions 

of policy and strategy that are left unanswered by the general plan. Cities are free to 

include clear, substantive requirements in their general plans, which will be enforced by 

the courts. But courts should not invent obligations out of thin air. 

Adequacy of EIR Under CEQA

“In reviewing an agency’s compliance with CEQA in the course of its 

legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether 

there was a prejudicial abuse of discretion.’ [Citation.] Such an abuse is established ‘if 

the agency has not proceeded in a manner required by law or if the determination or 

decision is not supported by substantial evidence.’” (Vineyard Area Citizens for 

Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426, fn. 

omitted.) “An appellate court’s review of the administrative record for legal error and 

substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial 

court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in 

that sense appellate judicial review under CEQA is de novo.” (Id. at p. 427.)

“CEQA requires an EIR to reflect a good faith effort at full disclosure . . . .” 

(Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712.) 

“Before the impacts of a project can be assessed and mitigation measures considered, an 

EIR must describe the existing environment. It is only against this baseline that any 

significant environmental effects can be determined.” (County of Amador v. El Dorado 

County Water Agency (1999) 76 Cal.App.4th 931, 952.)
29

The Conservancy contends the City violated CEQA by refusing to identify 

ESHAs in the EIR; all of its sub-arguments follow from this initial premise. The 

Conservancy claims the City consciously avoided making this determination because it 

was aware that a good faith effort in that direction could short circuit aspects of the 

Project that it wished to include (e.g., the extension of a road through ESHA). At least as 

early as December 2003, the City was on notice that determining which portions of 

Banning Ranch were ESHAs would be an important and controversial issue. Previous 

studies done by other agencies had determined that Banning Ranch included critical 

habitat for the California gnatcatcher and San Diego fairy shrimp. The initial biological 

study performed by Glenn Lukos Associates, Inc., in connection with the Project 

application indicated that ESHAs were present at Banning Ranch. The Coastal 

Commission’s comments on the draft EIR specifically indicated that roads proposed as 

part of the Project “would result in significant, unavoidable impacts to ESHA.” In short, 

an honest, good faith effort to categorize specific Banning Ranch habitats as ESHA (or 

not) may have necessitated a reworking of the Project.

The City’s response is that an ESHA determination is a legal determination, 

ultimately made by the Coastal Commission in a project like the instant one (i.e., a 

project not covered by the City’s coastal land use plan). (Cf. Chaparral Greens v. City of 

Chula Vista (1996) 50 Cal.App.4th 1134, 1145 [no “requirement under CEQA that a 

public agency speculate as to or rely on proposed or draft regional plans in evaluating a 

project”].) All of the necessary data pertaining to biological resources and habitat at 

Banning Ranch is included in the EIR. The EIR describes the environmental impacts of 

the Project and mitigation measures designed to address those impacts. The 

Conservancy’s complaint concerns the City’s reluctance to draw a legal conclusion based 

on a review of the data, not the failure to include data or scientific analysis that would 

enable a decisionmaker to classify a habitat as ESHA.
30

The City’s position is supported by our opinion in Banning Ranch I, supra, 

211 Cal.App.4th at pages 1233-1234, which rejected a similar contention by the 

Conservancy pertaining to a separate project. In Banning Ranch I, the Conservancy 

argued that “the EIR failed to disclose the park project’s inconsistency with the Coastal 

Act.” (Id. at p. 1233.) The supposed inconsistency was that the EIR “stated no area of 

[the] project had been designated an ESHA, according to the City’s coastal land use plan. 

It acknowledged two areas had ‘the potential to be considered . . . ESHA[s] by the 

California Coastal Commission.’” (Id. at pp. 1233-1234.) The Conservancy claimed that 

“the Coastal Commission is ‘highly likely’ to designate the two areas as ESHAs, and will 

reject the attempted mitigation.” (Id. at p. 1234.) This court’s response was that it 

“remain[ed] to be seen” whether the Coastal Commission would designate the contested 

habitats as ESHAs. (Ibid.) “There are no inconsistencies at the moment; the EIR 

adequately flagged potential inconsistencies and addressed them in advance through 

proposed mitigation.” (Ibid.)

Similarly, in the instant case, the City found the Project to be consistent 

with the policies of the Coastal Act. The main differences between the cases are that the 

City was not obligated to apply its coastal land use plan to Banning Ranch (unlike the 

park project at issue in Banning Ranch I) and the City opted not to speculate about 

potential ESHA at Banning Ranch in this case. Instead, the City simply deferred ESHA 

determinations to the Coastal Commission. This difference between the cases is 

unimportant for our purposes. The important point is that the City adequately flagged 

potential inconsistencies with the Coastal Act by emphasizing (1) that the Project was 

outside the scope of its coastal land use plan, and (2) that the Coastal Commission would 

determine whether ESHAs were affected by the Project. Clearly, it “remains to be seen” 

(Banning Ranch I, supra, 211 Cal.App.4th at p. 1234) whether the Coastal Commission 

will issue a development permit for the Project as currently constituted. CEQA does not 
31

require the City to prognosticate as to the likelihood of ESHA determinations and coastal 

development permit approval.

DISPOSITION

The judgment is reversed. The court shall set aside the peremptory writ of 

mandate issued on January 15, 2014, and enter a new judgment denying relief to the 

Conservancy. The City shall recover its costs on appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.