Filed 12/16/21 Ocean Street Extension etc. v. City of Santa Cruz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

OCEAN STREET EXTENSION 

NEIGHBORHOOD ASSOCIATION,

Plaintiff and Appellant,

v.

CITY OF SANTA CRUZ et al.,

Defendants and Appellants;

RICHARD MOE et al.,

Real Parties in Interest and 

Appellants.

 D079064

 (Super. Ct. No. 18CV03212)

APPEAL from an order and judgment of the Superior Court of Santa 

Cruz County, Paul P. Burdick, Judge. Affirmed in part; reversed in part.

Law Office of Babak Naficy and Babak Naficy for Plaintiff and 

Appellant.

Atchison, Barisone & Condotti, Anthony P. Condotti, and Barbara H. 

Choi for Defendants and Appellants.
2

Remy Moose Manley, Christopher L. Stiles, and Tiffany K. Wright for 

Real Parties in Interest and Appellants.

INTRODUCTION

In 2010, real parties in interest, Richard Moe, Ruth Moe, Craig Rowell, 

and Corinda Ray,1 applied to the City of Santa Cruz for design and planned 

development permits and a tentative map to construct a 40-unit development 

with 10 four-unit buildings on a parcel of land located at 1930 Ocean Street

Extension. Following an initial mitigated negative declaration and years of 

litigation surrounding the impact of the nearby crematory at Santa Cruz 

Memorial Park, in 2016, the real parties in interest renewed their interest in 

moving forward with their project. As required by the California 

Environmental Quality Act (CEQA) (Pub. Resources Code,2 § 21000 et seq.), 

the project applicant and the City of Santa Cruz prepared and circulated the 

initial study, the draft environmental impact report (EIR), the partially 

recirculated draft EIR, and the final EIR. Following a public hearing, the 

city council adopted a resolution to certify the EIR and to adopt Alternative 3, 

a 32-unit housing project.

The Ocean Street Extension Neighborhood Association (OSENA) filed a 

petition for writ of mandamus, alleging the City of Santa Cruz and its city 

1 The real parties in interest are the project applicants. Some 

documentation indicates all real parties in interest own the property; other 

documentation indicates the property is owned in a co-trust by Richard and 

Ruth Moe. 

2 Further section references are to the Public Resources Code unless 

otherwise specified.
3

council violated CEQA and the Santa Cruz Municipal Code in approving the 

project.3

The court concluded the City had complied with CEQA, but it 

determined the City violated the municipal code, and it issued a limited writ 

prohibiting the City from allowing the project to proceed unless and until it 

followed the municipal code and the court was satisfied with its compliance. 

Following entry of judgment, OSENA appealed, arguing the court erred 

by concluding the City complied with CEQA’s requirements. OSENA 

contends the City violated CEQA by (1) insufficiently addressing potentially 

significant biological impacts and mitigation measures in the initial study 

rather than in the EIR directly, (2) establishing improperly narrow and 

unreasonable objectives so that alternative options could not be considered

meaningfully, and (3) failing to address cumulative impacts adequately. The 

City cross-appealed, contending the court incorrectly concluded it violated the 

municipal code by granting a planned development permit (PDP) (Santa Cruz 

Mun. Code, § 24.08.700) without also requiring the project applicant to 

comply with the slope modifications regulations (Id., § 24.08.800). We agree 

with the City, and we will affirm the portion of the order and judgment 

concluding it complied with CEQA and reverse the portion of the order and 

judgment concluding the City violated its municipal code.

BACKGROUND AND PROCEDURAL FACTS

In 2010, the project applicant submitted a PDP to the City. The project 

is located on a 2.74 acre, irregularly shaped lot on the east side of Ocean 

Street Extension, adjacent to the northern city limits. It has a frontage on 

Ocean Street Extension, and the property slopes up from Ocean Street 

3 The City of Santa Cruz, the city council, and the real parties in interest 

filed jointly. Accordingly, we refer to them collectively as the City.
4

Extension to Graham Hill Road. The portion of the site adjacent to Ocean 

Street has slopes of less than 15 percent, and the upper portion of the site has 

slopes greater than 15 percent, with the steepest slopes located along the 

eastern edge of the property line, where they are greater than 30 percent. On 

the north side of the property, there is an adjacent vacant parcel. On the 

south side is the Santa Cruz Memorial Crematory. The surrounding area 

includes a mix of residential uses, including multifamily apartments and 

condominiums along Graham Hill Road south of Ocean Street Extension and 

low-density, single-family homes along Graham Hill Road to the north. 

The project proposal consisted of a 40-unit residential complex, with 10 

buildings, each containing four units, located at 1930 Ocean Street 

Extension. There is a mix of one-bedroom/one-bath units and twobedroom/two bath units, with living areas of 940 square feet and 1,091 square 

feet respectively. The first-floor units of two of the buildings contain two onebedroom/one-bath handicapped-accessible units, for a total of four accessible 

units on the site. The project also includes three detached carports, three 

refuse areas, and a 375-square foot manager’s office with a terrace and 

garden. The applicants intend to rent the units for the foreseeable future, 

but they may eventually opt to sell them. 

The project required approval of a design permit, a PDP, and a 

condominium subdivision map, as well as amendments to the General Plan 

designating the parcel as LM (low medium density residential) and rezoning 

it to multiple residence-low density. The PDP sought two variations from 

conventional regulations: tandem parking and development within 10 feet of 

a 30 percent or greater slope. 

The City prepared an initial study and a mitigated negative 

declaration, which it circulated for public review. Comments in response 
5

raised concerns about the nearby crematory and potential health and 

environmental impacts resulting from its emissions. The City Planning 

Commission initially heard the request in October 2010 and continued the 

hearing to collect additional information related to concerns about the 

crematory. Eventually the crematory owner agreed to relocate the 

crematory, and the City approved that relocation in 2014. OSENA 

challenged the relocation of the crematory, and the Santa Cruz Memorial 

Park eventually agreed to remove dental amalgams from teeth of deceased 

individuals to resolve the concerns. Subsequent studies revealed the mercury 

levels on the project site were below established human health screening 

levels and posed no threat. 

In September 2016, the project applicant decided to move forward with 

the project, and the City prepared an initial study. The City circulated the 

initial study and the notice of preparation for the EIR for a 30-day comment 

period. It also held a meeting to solicit comments on the scope of the EIR. 

The initial study identified two potentially significant biological impacts that 

would be reduced to less-than-significant impacts with required mitigation 

measures in place. Public comments included, among other things, questions 

about potential biological impacts, which the City subsequently addressed. 

In May 2017, the City released a draft EIR (DEIR) for public comment. 

The DEIR included as an appendix the entirety of the initial study. It also

included and discussed three project alternatives: a project with nine 

dwelling units; a project with 19 single family homes; and a 32-unit multifamily alternative, in addition to the “no project” alternative. At the request 

of commenters, the City revised and recirculated for a 45-day review period a 

partially recirculated DEIR that updated information about traffic and 

transportation. 
6

In August 2018, the City released the final EIR (FEIR). The Planning 

Commission held a public hearing and recommended the city council approve

the proposed 40-unit project. The City Council considered the EIR and the 

project proposal on September 25, 2018. The vice mayor moved to accept 

Alternative 3, reducing the project from 40 units to 32 units. A majority of 

council members voted to approve this alternative and certify the EIR. The 

City filed a Notice of Determination on September 26, 2018. OSENA filed a 

petition for writ of mandamus on October 25, 2018, alleging the City’s 

certification of the EIR violated CEQA, and it failed to comply with the Santa 

Cruz Municipal Code.

On November 12, 2018, the City Council adopted Resolution 

No. NS-29,449, which amended the General Plan to change the land use 

designation of the project parcel to low medium density, rezoned the parcel to 

multiple residence-low density, and approved the design permit and PDP 

applications, as well as the tentative map. 

The superior court heard arguments on November 22, 2019 and 

January 10, 2020. On April 22, 2020, the court entered judgment. It found 

the City fully complied with CEQA in preparing and certifying the EIR and 

denied the writ as to those claims. It granted a limited peremptory writ of 

mandamus remanding the proceedings to the City and directing the City to 

set aside the PDP granted by Resolution No. NS-29,449 and to take further 

action in compliance with the judgment. It granted injunctive relief 

prohibiting the City from proceeding with the project unless and until the 

City complied with the Santa Cruz Municipal Code regarding the slope 

regulations. 

OSENA timely appealed the court’s CEQA decision. The City timely 

appealed the court’s decision regarding the municipal code. 
7

DISCUSSION

I.

ADEQUACY OF EIR

A. Additional Facts

1. Initial Study

The October 3, 2016 initial study described the project as a 40-unit 

apartment/condominium development consisting of 10 residential buildings 

and three carports. Project access would be provided via a private street, and 

it would create 95 parking spaces, as well as offsite road improvements. 

The environmental impacts table noted potentially significant issues 

with two air quality factors, three geology and soil factors, one greenhouse 

gas emissions factor, two hydrology and water quality factors, one land use 

and planning factor, two transportation/traffic factors, and one utilities 

factor. It also noted several factors as potentially significant unless 

mitigation were incorporated: two biological resources impacts, one noise 

factor, and one cumulative impact. The initial study determined that the 

proposed project may have a significant impact on the environment, so an 

EIR was required. It identified topics to be discussed in the EIR, none of 

which were factors identified as potentially significant unless mitigation were

incorporated. 

In the section explaining the environmental checklist responses, the 

initial study addressed biological resources. It identified plant communities 

and habitat type and shared that a biological assessment had been conducted 

in March 2007 and updated in 2016. It explained the onsite grasslands 

provided a potential habitat for the Ohlone tiger beetle, the American badger, 

and the western burrowing owl, none of which were observed during the site 

survey. The site survey also found no evidence of San Francisco dusky-footed 
8

woodrat nests but noted the site had the potential to support the species, and 

it recognized that eucalyptus groves could provide wintering habitat for 

monarch butterflies but explained the location offered a low-quality habitat 

because of the limited number of trees and lack of adjacent water source. 

Site visits in December 2007 and January 2008 also found no evidence of the 

monarch butterflies. 

The initial study concluded there was a less-than-significant impact to 

special status species or sensitive habitats but nonetheless recommended as a 

condition of approval a preconstruction survey for active woodrat nests and 

either removal of the nests or enactment of a protective exclusion zone. 

The initial study also detailed the locations of three main wildlife 

corridors, noting the project site did not fall within any of them. It identified 

nesting raptors as having the potential to occur in the eucalyptus trees on the 

project site. The impact analysis explained the proposed tree removal of 

seven eucalyptus trees and two acacia trees during breeding season, 

generally March 1 through August 1, could cause mortality to nesting avian 

species if active nest sites were destroyed. It also explained prolonged 

construction activity could result in nest abandonment or failure, and it 

determined this was a potentially significant impact, which would be reduced 

to a less-than-significant level by following the proposed mitigation measure. 

Mitigation measure Bio-1 would schedule tree removal between 

August 15 and February 15, outside breeding season. If that schedule were 

not practical, a qualified biologist would conduct a pre-construction survey 

within 15 days of tree removal, and removal would be delayed until the nests 
9

were not in use. It also required a suitable buffer zone, typically 300 feet for 

raptors and 100 feet for other species, to allow for construction activities 

without disturbing active nests.4

The initial study identified local ordinances related to tree removal, 

which set mitigation requirements. The project would require the removal of 

10 heritage trees, nine onsite and one offsite in connection with road 

improvements. These removals were considered not significant because of 

the project’s plan to plant 90 additional trees, including 11 live oak trees, 

which exceeded ordinance requirements. 

The initial study recognized that construction could inadvertently 

damage six onsite live oak trees due to grading and disturbance of the root 

zones unless the trees and root zones were adequately protected. This 

potential damage led the agency to identify the project as having a 

potentially significant impact on the environment that would be reduced to 

less than significant with mitigation measures implemented. 

In addition to planting additional trees beyond the number required by 

ordinance, the initial study required mitigation measure Bio-2 to mitigate the 

potential damage to the retained trees. Bio-2 requires the adoption of 

measures outlined in the project arborist reports, which detail specific 

measures for each tree, including construction fencing, cabling tree trunks, 

prohibiting storage or dumping in the fenced area, protecting trees and root 

zones, and pruning. The mitigation measures also require retention of an 

arborist to inspect and monitor tree protection zones throughout the duration 

of the project to ensure compliance with the measures. 

4 The Biotics Resources Group report specified that a buffer zone would 

be an area where no construction would occur until fledglings had left the 

nest and were able to forage on their own. 
10

In November 2016, in response to the City’s notice of preparation of an 

EIR, OSENA complained that the site surveys were inadequate to establish 

the presence or absence of some protected species and sought information 

about the project impact on several species: the white-rayed pentachaeta, the 

garter snake, the Zayante band-winged grasshopper, and the Mount Hermon 

June beetle. OSENA also sought information about the risks to wildlife in 

the area from paving, traffic, and lights. The comments recommended risk 

mitigation efforts, like protective fencing, reduced speed limits, restricted 

traffic, and restricted construction timelines “to ensure breeding, nesting and 

migration habits” were unimpaired. 

The agency revised the initial study to respond to comments. The 

revision explained that the March 2007, October 2010, and September 2014 

site surveys produced no evidence of the white-rayed pentachaeta and noted 

that the species was last reported in the county in 1955. It also explained 

that the site was not located in a sensitive habitat area, and the biological 

surveys did not identify sandhills habitats, where the Mount Hermon June 

beetle and the Zayante band-winged grasshoppers are found. 

2. DEIR

In May 2017, the agency issued the DEIR, which included Section 2.5.2, 

entitled Summary of Impacts and Mitigation Measures, Significant Impacts. 

In the portion entitled “Impacts Evaluated in Initial Study (Appendix A),” the 

DEIR identified nesting birds and heritage tree damage as biological impacts. 

The DEIR briefly noted that tree removal during nesting season could lead to 

mortality to nesting avian species and detailed the recommended mitigation. 

It identified the retention of six onsite coast live oak trees that could be 

inadvertently damaged during construction and detailed the recommended 
11

mitigation measures explained in the initial study. It also separately 

identified that riparian, wetland, and sensitive habitats were addressed in 

the Biological Resources section of the initial study, found at Appendix A.5

3. Partially Recirculated DEIR

In April 2018, the lead agency issued its Partially Recirculated DEIR 

that addressed traffic and transportation. The Biological Resources section 

from the May 2017 DEIR was unchanged. 

4. FEIR

In August 2018, the City issued the FEIR. The section summarizing 

impacts and mitigation measures explained that “[t]he discussions in the 

Initial Study of impacts that are not being addressed in detail in the text of 

the DEIR are intended to satisfy the requirement of CEQA Guidelines 

section 15128 that an EIR ‘shall contain a statement briefly indicating the 

reasons that various possible significant effects of a project were determined 

not to be significant and therefore were not discussed in detail in the EIR.’ 

The Initial Study is included in Appendix A of the EIR. A summary of lessthan-significant and no impacts identified in the Initial study is presented at 

the end of this section.”

FEIR, section 2.5.2, Significant Impacts, includes a summary of the 

project impacts on nesting birds and heritage trees. The text is identical to 

what appeared in the DEIR. The FEIR also separately identifies special 

status species and the riparian, wetland, and sensitive habitats as impacts 

evaluated in the Biological Resources section of the initial study, which was 

attached as Appendix A to the DEIR. 

5 Appendix A to the EIR contained the full text of the initial study, 

including the discussion of biological resources. 
12

B. CEQA Requirements

CEQA was adopted so that “all agencies of the state government which 

regulate activities . . . which are found to affect the quality of the 

environment, shall regulate such activities so that major consideration is 

given to preventing environmental damage. . . .” (§ 21000, subd. (g).) The 

agency evaluates whether the proposed activity is subject to CEQA because it 

could affect the quality of the environment. If it is subject to CEQA, the 

agency decides whether the project qualifies for an exemption from CEQA 

review. (Union of Medical Marijuana Patients, Inc. v. City of San Diego 

(2019) 7 Cal.5th 1171, 1185 (Union).) If a project does not fall within a CEQA 

exemption, the lead agency conducts an initial study to determine whether 

the project may have a significant impact on the environment. (Muzzy Ranch 

Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380; 

CEQA Guidelines, §§ 15063, subd. (a), 15002, subd. (k)(2) [hereinafter 

“Guidelines”].) The purposes of the initial study are to provide information to 

the lead agency so it can determine whether to prepare an EIR or a negative 

declaration, to enable the lead agency to modify the project by mitigating 

adverse impacts to a less-than-significant level so it can prepare a mitigated 

negative declaration, and to assist in preparing and EIR if one is required, by 

focusing the EIR on significant effects, identifying the effects determined not 

to be significant, and explaining why potentially significant effects would not 

be significant. (Guidelines, § 15063, subd. (c)(1)-(3)(C).) If the initial study 

reveals “substantial evidence that any aspect of the project, either 

individually or cumulatively, may cause a significant effect on the 
13

environment,” the lead agency prepares an EIR. (Guidelines, § 15063,

subd. (b)(1)(A); Union, at p. 1187; Save Our Big Trees v. City of Santa Cruz

(2015) 241 Cal.App.4th 694, 704-705.) 

The CEQA Guidelines include an Environmental Checklist for use with 

the initial study to help lead agencies assess whether there are potentially 

significant environmental impacts that necessitate completing an EIR. 

(Guidelines, Appendix G.) This form contains a table that lists each of the 

environmental factors and asks the lead agency to identify whether that 

factor will have a potentially significant impact on the environment, a less 

than significant impact with mitigation incorporated, a less than significant 

impact, or no impact. (Ibid.) It directs users: “If there are one or more 

‘Potentially Significant Impact’ entries when the determination is made, an 

EIR is required.” (Ibid., Evaluation of Environmental Impacts, No. 3.) 

Accordingly, if no aspect of the project causes a significant effect on the 

environment, the lead agency prepares a negative declaration. (Guidelines, 

§ 15063, subd. (b)(2); Union, supra, 7 Cal.5th at pp. 1186-1187.) And if the 

initial study identifies potentially significant environmental effects that can

all be fully mitigated by changes in the project, and the project applicant 

agrees to incorporate the changes into the project, the lead agency prepares a 

mitigated negative declaration. (Guidelines, § 15070, subd. (b); Protecting 

Our Water and Environmental Resources v. County of Stanislaus (2020) 10 

Cal.5th 479, 488-489.) 

“An EIR is an ‘environmental “alarm bell” whose purpose it is to alert 

the public and its responsible officials to environmental changes before they 

have reached ecological points of no return.’ [Citations.] The EIR is also 

intended to ‘demonstrate to an apprehensive citizenry that the agency has, in 

fact, analyzed and considered the ecological implications of its action.’
14

[Citations.] Because the EIR must be certified or rejected by public officials, 

it is a document of accountability. If CEQA is scrupulously followed, the 

public will know the basis on which its responsible officials either approve or 

reject environmentally significant action, and the public, being duly 

informed, can respond accordingly to action with which it disagrees. 

[Citations.] The EIR process protects not only the environment but also 

informed self-government.” (Laurel Heights Improvement Assn. v. Regents of 

University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights).) The 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.” (Id. at p. 405.)

Among other topics, an EIR must discuss significant environmental 

effects and unavoidable significant environmental effects, either in separate 

sections or by identifying them in a table showing where these subjects are 

addressed. (Guidelines, § 15126, subds. (a) & (b).) The EIR focuses on 

significant environmental effects, by “[d]escrib[ing] any significant impacts, 

including those which can be mitigated but not reduced to a level of 

insignificance” in addition to “impacts that cannot be alleviated without 

imposing an alternative design,” as well as “their implications and the 

reasons why the project is being proposed, notwithstanding their effect.” (Id.,

§ 15126.2, subds. (a) & (c).) For significant adverse effects, the EIR must 

describe feasible measures to minimize significant adverse effects and discuss 

the basis for selecting a particular measure where several are available. (Id.,

§ 15126.4, subds. (a)(1)(A) & (B).) And for any possible significant effects of a 

project determined not to be significant and therefore not discussed in detail 
15

in the EIR, the EIR must contain a statement indicating the reasons for the 

determination, which can be contained in the initial study and attached. (Id.,

§ 15128.)

C. The EIR is Adequate.

OSENA contends the City failed to comply with CEQA because the EIR 

does not analyze impacts to biological resources “in the EIR itself,” and 

because the “cursory reference to the Initial Study’s discussion of biological 

impacts was inadequate to fulfill its informational mandate.”

We review compliance with CEQA for a prejudicial abuse of discretion. 

(§ 21168.5; Cleveland National Forest Foundation v. San Diego Assn. of 

Governments (2017) 3 Cal.5th 497, 511.) Prejudicial abuse of discretion exists 

“ ‘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 (Vineyard).) 

“[W]hen the issue is whether an EIR’s discussion of environmental 

impacts is adequate, that is, whether the discussion sufficiently performs the 

function of facilitating ‘informed agency decisionmaking and informed public 

participation[,]’ ” such a claim is “not typically amendable to substantial 

evidence review.” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 513, 

515 (Sierra Club).) Noncompliance with information disclosure provisions 

may constitute prejudicial abuse of discretion. (Id. at p. 515.) 

The EIR must be prepared “with a sufficient degree of analysis to 

provide decisionmakers with information which enables them to make a 

decision which intelligently takes account of environmental consequences. . . .

The courts have looked not for perfection but for adequacy, completeness, and 

a good faith effort at full disclosure.” (Guidelines, § 15151; Sierra Club,
16

supra, 6 Cal.5th at p. 514; San Francisco Ecology Center v. City and County 

of San Francisco (1975) 48 Cal.App.3d 584, 594.) Thus, the legal standard 

that applies to whether an EIR meaningfully addresses an issue is the 

general standard for adequacy. (King & Gardiner Farm, LLC v. County of 

Kern (2020) 45 Cal.App.5th 814, 848 (King).) The question is “whether [the] 

EIR’s discussion of environmental impacts is adequate, that is, whether the 

discussion sufficiently performs the function of facilitating ‘informed agency 

decisionmaking and informed public participation.’ [Citation.]” (Id., at 

p. 848; Sierra Club, at p. 510 [reviewing court must be satisfied there is 

sufficient detail to enable those who did not participate in preparation to 

understand and meaningfully consider issues raised by project].) 

1. Location of Discussion

We begin by addressing the placement of the discussion of biological 

resources in the initial study rather than in the EIR itself. Citing Guidelines, 

section 15063, subdivision (c)(2), OSENA argues that the discussion of 

environmental impacts mitigated to less than significant can only occur in an 

initial study when no EIR is prepared. The City counters that Guidelines 

section 15128 allows a lead agency to place the information in an initial study 

when possible significant effects are determined to be less than significant 

with mitigation. 

Public Resources Code section 21068 defines “significant effect on the 

environment” as “a substantial, or potentially substantial, adverse change in 

the environment.” The Guidelines use this definition to explain that an EIR 

is required if there is substantial evidence in the record that the project may 

have a significant effect on the environment. (Guidelines, § 15064, subd. (f).) 

The Guidelines also explain that that effects dismissed “as clearly 

insignificant and unlikely to occur” need not be discussed further in the EIR. 
17

(Id., § 15143.) But neither the statutes nor the Guidelines explicitly 

addresses how to characterize an impact in the EIR after the lead agency has 

determined it in the initial study to be less than significant with mitigation 

incorporated.

The checklist promulgated in the Guidelines asks the lead agency to 

characterize each factor as potentially significant, less than significant with 

mitigation incorporated, less than significant, or having no impact. 

(Guidelines, Appendix G.) When any of the factors is identified on the 

checklist as potentially significant, the EIR is triggered, but if the factors are 

all determined to be less than significant with mitigation, no EIR is required; 

a negative mitigated declaration is acceptable. (Ibid.; Id., §§ 15063, 

subd. (b)(1)(A), 15070, subd. (b).) This suggests that an environmental factor 

that is “less than significant with mitigation incorporated” is not considered 

“potentially significant” for purposes of triggering the EIR. The EIR focuses 

on the environmental factors that have a significant impact. (Id., §§ 15063, 

subd. (c)(3), 15126, subd. (a) & (b).)

Here, the initial study did not use the information about the biological 

resources to decide whether to prepare an EIR or a negative declaration 

(Guidelines, § 15063, subd. (c)(1)) because other environmental factors 

necessitated the completion of an EIR. (See Id., § 15063, subd. (b)(1)(A); 

Union, supra, 7 Cal.5th at p. 1187 [if any aspect of the project may cause a 

significant effect on the environment, EIR is required].) The information 

from the initial study enabled the lead agency to modify the project to 

mitigate adverse impacts before the EIR was prepared, helped focus the EIR 

on the effects determined to be significant, and explained the reasons 

potentially significant effects would not be significant, all purposes of an 

initial study identified in the Guidelines. (See Guidelines, § 15063, 
18

subds. (c)(2), (c)(3)(A) & (c)(3)(C).) Further, nothing prohibits the discussion 

of impacts that are less than significant with mitigation in an initial study 

rather than in the EIR so long as the EIR complies with its purpose as an 

informational document. 

The purpose of CEQA is to ensure that a public agency regulates 

activities to prevent environmental damage (§ 21000, subd. (g)) and to alert 

the public and officials to environmental change so they can “consider 

meaningfully the [environmental] issues raised by the proposed project”

(Laurel Heights, supra, 47 Cal.3d at pp. 392, 405; § 21002). Thus, rather 

than elevate form over function here, we ask whether the information is 

adequate to facilitate “ ‘ “informed agency decisionmaking and informed 

public participation.” ’ ” (King, supra, 45 Cal.App.5th at p. 848.) As we next 

detail, the EIR, including its appendices, fulfills CEQA’s purpose.

2. Sufficiency of the Information 

There is no litmus test or minimum length required to ensure a 

discussion is sufficiently detailed to comply with CEQA’s informational 

mandate. We do not look for technical perfection or “ ‘an exhaustive 

analysis,’ ” but instead we consider whether the information supplied is 

adequate, complete, and the agency has made a good faith effort at fully 

disclosing the information. (Sierra Club, supra, 6 Cal.5th at p. 515.) 

The DEIR included a summary of impacts and mitigation measures 

and identified nesting birds and heritage tree damage as potential biological 

impacts. It explained that tree removal during nesting season would lead to 

avian mortality and detailed the recommended mitigation. It specifically 

identified the coast live oak trees that would be retained onsite, explained the 

potential for damage to those six trees, and outlined mitigation measures to 
19

protect each of them. And it directed readers to the initial study. After the 

initial study was circulated for comment, the DEIR, which included a full 

copy of the initial study, was also circulated for public comment. 

The FEIR explains that there are possible significant effects that were 

determined not to be significant with mitigation measures in place and 

directs readers to the appendix for more detail. It summarizes the impacts 

the lead agency determined were less than significant, including the impacts 

on biological resources, and specifically potential impacts on nesting birds 

and heritage trees. The FEIR also recognizes comments regarding biological 

resources and directly addressed the concerns regarding the Ohlone tiger 

beetle, the monarch butterfly, Mount Hermon June beetle, kangaroo rat, and 

endangered plants, steelhead and coho salmon, and the tidewater goby. 

The FEIR directs the public and decisionmakers to information about 

the project’s potential effects on biological resources in the section 

summarizing impacts and mitigation procedures, in section 2.5.2, and again 

in the section labeled Biological Resources.6

The initial study is available in its entirety and incorporated into the 

FEIR. It describes the habitat and summarizes the findings from site 

surveys conducted in 2007, 2010, 2014, and 2016. It explains the significance 

of tree removal to nesting birds’ mortality and requires mitigation measures 

to avoid disrupting active nests. It also recognizes the potential for activities 

to disturb the birds and incorporates mitigation measures to avoid those 

disruptions. The initial study details the potential for inadvertent damage to 

live oak trees and adopts mitigation measures to address those possibilities. 

6 This information was identical to what was included in the DEIR, so 

OSENA also had time to review and respond to it. 
20

The information alerts officials and the public to the environmental issues 

and provides adequate information to inform them. (Laurel Heights, supra, 

47 Cal.3d at pp. 391, 405; King, supra, 45 Cal.App.5th at p. 848.)

To challenge the depth of the analysis, OSENA argues in its reply brief 

that the EIR should have addressed the types of birds that could be affected, 

the likelihood that they could be found at the site, and the likelihood and 

magnitude of the project’s impact on them. While these details may have 

enhanced the discussion, their absence does not undermine the adequacy of 

the EIR as an informational document because the initial study makes clear 

that whatever the birds affected, their nests will not be removed when in use; 

thus, any impact to bird mortality has been eliminated. 

Finally, OSENA argues that it was improper for the City to rely on 

mitigation measures identified in the initial study, suggesting Salmon 

Protection & Watershed Network v. City of Marin (2004) 125 Cal.App.4th 

1098 holds that mitigation measures may only be discussed as part of the 

FEIR. In Salmon the lead agency employed an exemption to avoid any 

CEQA review and did not prepare an initial study, relying on mitigation 

measures to justify the exemption. (Salmon, at pp. 1104, 1107.) The court 

explained that if a project may have a significant effect on the environment, a 

CEQA review is required, at which time mitigation measures become 

relevant. (Salmon, at p. 1107.) But the court did not conclude that 

mitigation was only relevant to an EIR; it recognized that mitigation 

measures could be considered for a mitigated negative declaration, too (ibid.), 

and that determination is made before an EIR is developed (Guidelines, 

§ 15070, subd. (b)). Further, in addition to being supplied in the initial study, 
21

the mitigation measures are identified and detailed in the FEIR, in 

section 2.5.2 and in the Mitigation Monitoring and Reporting Program 

(MMRP) adopted by the City. 

The EIR provides a sufficient degree of analysis so that decisionmakers 

could intelligently take account of environmental consequences. It 

appropriately focuses on significant environmental effects (Guidelines, 

§§ 15126, 15126.2, subds. (a) & (c)), describes feasible mitigation measures 

(Id., §§ 15126.4, subds. (a)(1)(A) & (B), 15123), and it explains why it 

determined the environmental effects on biological resources will be less than 

significant with the required mitigation measures.7 (Id., § 15128). Thus, we 

conclude the FEIR is adequate; there is no prejudicial abuse of discretion.

3. Discussion of Mitigation Measures

OSENA also argues that the EIR is inadequate because the mitigation 

measures are vague, and their adoption impermissibly defers determination 

of the measures to a later date. 

OSENA raises these challenges for the first time on appeal. Because 

OSENA failed to exhaust its administrative remedies, as it was required to 

7 OSENA contends that “credible information received by the City 

subsequent to the approval of the Initial Study contradicts the Initial Study’s 

findings.” This argument is not one of adequacy but instead appears to 

challenge the correctness of the agency’s conclusions. We note that the 

documents OSENA references are letters requesting an additional survey for 

monarch butterflies, which ultimately occurred and found no presence of 

monarch butterflies; a recommendation for a preconstruction survey to verify 

the lack of woodrats, which was adopted as a condition of approval; and a 

letter explaining more recent surveys confirmed earlier findings. Further, 

while some of OSENA’s comments challenged the findings of the site surveys, 

OSENA did not offer contradictory findings. And even if they had, we would 

find no error by the superior court because there is substantial evidence to 

support the City’s conclusions. (See Laurel Heights, supra, 47 Cal.3d at pp. 

392-393.)
22

do (see § 21177, subd. (a); City of Long Beach v. City of Los Angeles (2018) 19 

Cal.App.5th 465, 474-475), we lack jurisdiction to consider this argument 

(California Native Plant Society v. City of Rancho Cordova (2009) 172 

Cal.App.4th 603, 615 [exhaustion of administrative remedies is 

jurisdictional]; Coalition for Student Action v. City of Fullerton (1984) 153 

Cal.App.3d 1194, 1198 [failure to exhaust administrative remedies precludes 

raising an issue on appeal]).

Even if we had jurisdiction, we would find OSENA forfeited this 

argument by failing to raise it in the superior court. (See South of Market 

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

Cal.App.5th 321, 329 [appellant forfeited CEQA argument by raising it for 

the first time on appeal]; Sacramentans for Fair Planning v. City of 

Sacramento (2019) 37 Cal.App.5th 698, 717-718 [same].) 

Finally, even we were to consider the issue on the merits, we would 

conclude there was no prejudicial abuse of discretion because substantial 

evidence in the record supports the City’s determination. The question of the 

effectiveness of the mitigation measures is a factual one. (See North Coast 

Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 

Cal.App.4th 614, 637-638 (North Coast Rivers).) Where, as here, the 

challenge is to the City’s conclusions, we ask whether substantial evidence 

supports the conclusions, not whether others might disagree with them. (Id.

at pp. 626-627.) 

OSENA directs us to Lotus v. Department of Transportation (2014) 223 

Cal.App.4th 645 (Lotus) to compare the deficiencies there to the EIR here. In 

Lotus, the FEIR discussed overall impacts on the community of redwood trees 

but failed to identify trees that would be impacted or the significance of those 

impacts. (Id. at p. 654.) Because experts cited in the EIR concluded there 
23

would be no significant impact on tree roots without first discussing the 

environmental impacts without mitigation measures, it was not possible to 

assess whether other possible mitigation measures would be more effective. 

(Id. at p. 657.) Further, this deficiency was pointed out in the comments to 

the DEIR by the Department of Parks and Recreation but not addressed in 

the FEIR. (Id. at pp. 657-658.) The failure to correct this deficiency was 

exacerbated by other inconsistencies in the DEIR that likewise were not 

corrected in the FEIR. For example, although the DEIR stated no mitigation 

measures were proposed, it also contained mitigation measures elsewhere in 

the draft. (Ibid.) 

Further, the DEIR in Lotus identified mitigation measures to be taken 

at the contractors’ discretion rather than as enforceable mitigation measures, 

even though the measures would be necessary to avoid a significant 

environmental impact to tree roots. (Lotus, supra, 223 Cal.App.4th at p. 

657.) Although the lead agency responded to these concerns with an 

assurance that it would identify avoidance and mitigation measures in the 

final draft, it failed to do so. (Id. at pp. 657-658.) Ultimately, the appellate 

court concluded that the failure to separately identify and analyze the 

significance of the project’s impacts to the redwood trees’ root zones before 

proposing mitigation measures was a procedural failing showing a prejudicial 

abuse of discretion. (Id. at p. 658.)

But the mitigation measures here are not comparable to those in Lotus; 

they are neither vague nor deferred. Bio-1 requires tree removal between 

August 15 and February 15, outside breeding season, to avoid disrupting 

nesting birds. For construction that occurs during nesting season, Bio-1 

establishes buffer zones of 100 to 300 yards based on the bird species so that 

activities do not disturb the nesting birds. To verify the need for buffer zones, 
24

Bio-1 requires a qualified biologist to conduct a preconstruction survey to 

identify any active nests and employ the aforementioned measures. By 

prohibiting tree removal and establishing zones in which no construction can 

occur, this mitigation measure sets specific guidelines to ensure there is no 

disturbance of active nests, thereby eliminating potential for bird mortality. 

The requirement of a preconstruction survey does not make this mitigation 

measure a deferred one or one based solely on the discretion of the biologist 

because it specifies the actions taken based on the findings of the survey. 

(See Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1126-1127 

[mitigation measure required lighting design that avoids adjacent 

properties]; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 

1277 [mitigation measure requires preconstruction surveys for toads and 

establishes requirement for satisfactory breeding pools if toads found].) 

Accordingly, it complies with CEQA. (Laurel Heights, supra, 47 Cal.3d at 

p. 408 [EIR discussion of mitigation measures can be imperfect in particulars 

and also adequate].)

The mitigation measures in Bio-2 likewise are sufficiently detailed and 

certain, distinguishing them from those in Lotus. Unlike the measures in 

Lotus, Bio-2 is directed at identified trees, and the adopted arborist reports 

specify the treatment for each one of the trees. Bio-2 requires fencing, 

cabling tree trunks, prohibiting storage or dumping in the fenced area, 

pruning, and other root protection activities.8 It requires an arborist to be 

retained throughout construction to ensure that each of the recommendations 

listed in the arborist report occurs. And additional conditions of approval 

8 OSENA’s comments asked the City to consider mitigation efforts such 

as protective fencing and construction timelines to ensure breeding, nesting 

and migration habits were protected. 
25

separately mitigate tree loss because the City must plant 90 new trees, more 

than three times the amount required for the 11 oak trees that are identified 

for removal. Even if these six trees are damaged, their damage is mitigated 

through planting additional trees in accordance with city ordinances. Thus, 

not only is the information sufficiently detailed, but the conclusions are 

supported by substantial evidence.

II.

PROJECT OBJECTIVES

A. Additional Facts

The EIR identified six project objectives, the first three of which 

reference the City’s General Plan Housing Element Goals:

“1. To develop a multi-family project that will provide 40 

new work force housing opportunities to the City of Santa 

Cruz per the Housing Element, Goal 1.[9] 

“2. To provide 40 affordable-by-design, moderate cost 

housing opportunities per the Housing Element, Goal 2.[10] 

“3. To provide housing opportunities to persons with 

disabilities, per the Housing Element Goal 3.[11] 

“4. To make efficient use of an undeveloped parcel 

within existing city limits that is encircled by a greenbelt, 

9 The City’s General Plan Housing Element Goal 1 is to “[e]ncourage an 

adequate diversity in housing types and affordability levels to accommodate 

present and future needs of Santa Cruz residents.” 

10 Goal 2 is to “[i]ncrease and protect the supply of housing affordable to 

extreme low, very low, low, and moderate income households.” 

11 Goal 3 is to “[p]rovide for the development of accessible housing and 

appropriate supportive services that provide equal housing opportunities for 

special needs populations.” 
26

with new infill housing as a critical part of the City’s 

approach to providing new housing opportunities. 

“5. To provide new housing opportunities in a location 

that:

▪ Is close to Santa Cruz City core and services

▪ Can be accessed by public transportation, bicycle and 

pedestrians

▪ Is close to an arterial street (600 feet) and State 

highway transportation (1,650 feet)

“6. To develop 40 new housing opportunities in the free 

market:

▪ Without government or private subsidies

▪ While paying all application, impact and permit fees 

($1,000,000+)

▪ While providing substantial off-site community 

improvements

▪ And creating jobs for local trades people and vendors 

via $10,000,000+ in construction costs” 

An alternate use for the property was considered and eliminated 

because it was not consistent with the General Plan and did not meet the 

project objectives. The EIR also considered placing the project in an alternate 

location and eliminated that option because it was infeasible unless the 

applicant were to obtain ownership of an alternate property. This left four 

possible alternatives: no project; Alternative 1, a residential project under 

existing general plan and zoning designations (9 dwelling units); 

Alternative 2, a residential project with an existing General Plan amendment 

and rezoning the land to R-1-5 (19 dwelling units); and Alternative 3, a 

reduced-size project (32 dwelling units). 
27

The agency did not recommend the no-project alternative because it did 

not meet any of the project’s stated goals. 

Alternative 1 considered developing nine single-family homes. Each 

home would be larger than 2,000 square feet, but the land use density would 

be substantially reduced from the original project. Homes this size are 

estimated to sell for between $1.7 million and $1.9 million. The project would 

meet objectives 3 and 5 but did not meet objectives 1, 2, 4, and 6. 

Alternative 2 would develop 19 dwelling units on the property, which 

was nine more buildings than the project called for, and it would achieve 

objects 3, 4, and 5 and partially obtain objectives 1, 2, and 6. This alternative 

was consistent with the zoning as a low-density area. 

Alternative 3 would develop 32 condominium/apartment units. It 

would reduce density, attain objectives 3, 5, and 6 and partially attain 

objectives 1, 2, and 6.12

The EIR contains a chart that compares the environmental impacts of 

the various alternatives. It explains that Alternatives 1 and 2 would 

potentially eliminate the significant impact related to nesting birds because 

it may not require tree removal, but it would not eliminate any of the other 

identified environmental impacts. Alternatives 2 and 3 partially attained 

objectives 1, 2, and 6 and attained objectives 3, 4, and 5. The EIR concludes

that Alternative 3 would best achieve project objectives and reduce the 

severity of the impacts. Accordingly, the agency viewed Alternative 3 as the 

environmentally superior alternative of those reviewed. 

12 The EIR states that Alternative 3 would attain objectives 3, 5, and 6 

and partially attain objectives 1, 2, and 6. This appears to be a typo because 

it ignores objective 4 and mentions objective 6 twice. 
28

B. Project Objectives are Adequate.

OSENA argues the project’s objectives are too narrow because they 

target 40 units, and also vague and misleading in their choice of descriptors. 

In particular, OSENA contends the terminology “work force housing 

opportunities,” “affordable-by-design,” and “moderate cost housing 

opportunities,” merely function as advertising descriptors of the planned 

space. The City responds that the target number of 40 housing units reflects 

the desire to help meet the needs of the community in response to a housing 

crisis. The City also argues that the objectives did not preclude consideration 

of a reasonable range of alternatives. 

CEQA requires an EIR to consider and analyze a range of reasonable 

project alternatives that would feasibly attain most of the basic objectives but 

would avoid or substantially lessen significant impacts of the project. (In re 

Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163 (Bay-Delta); Pub. Resources Code, 

§ 21061; Guidelines, § 15126.6, subd. (a).) Clearly written objectives help the 

lead agency develop the range of alternatives by including the underlying 

purpose of the project. (Bay-Delta, at p. 1165; Guidelines, § 15124, subd. (b).) 

“Although a lead agency may not give a project’s purpose an artificially 

narrow definition, a lead agency may structure its EIR alternative analysis 

around a reasonable definition of underlying purpose and need not study 

alternatives that cannot achieve that basic goal.” (Bay-Delta, at p. 1166.) 

As we previously indicated, under the prejudicial abuse of discretion 

standard, we review the challenge to the EIR to determine whether it 

adequately informs decisionmakers (Sierra Club, supra, 6 Cal.5th at p. 515; 

accord Laurel Heights, supra, 47 Cal.3d at p. 406; King, supra, 45 

Cal.App.5th at p. 848), and we ask whether the agency’s conclusions are 
29

supported by substantial evidence (Vineyard, supra, 40 Cal.4th at p. 426; 

North Coast Rivers, supra, 216 Cal.App.4th at pp. 626-627).

Objective 1, which uses the term “work force housing opportunities”

ties to Housing Element Goal 1, which seeks to encourage diversity in both 

types of housing and affordability levels, not tied to a particular definition of 

affordability. Objective 2, which uses the language “affordable-by-design, 

moderate cost housing opportunities,” is tied to Housing Element Goal 2, 

which focuses on providing housing for “extreme low, very low, low, and 

moderate income households.” While the EIR does not defined “affordableby-design” or “moderate cost housing,” the City’s General Plan does explain 

what constitutes “affordable” housing: “Housing capable of being purchased 

or rented by a household with very low, low, or moderate income, based on a 

household’s ability to make monthly payment necessary to obtain housing. 

Housing is considered affordable when a household pays less than 30 percent 

of its gross monthly income (GMI) for housing including utilities.” The first 

two project objectives specify a goal of providing 40 housing units,13 and they 

also incorporate the City’s General Plan Housing Element Goals 1 and 2, 

which are to encourage diversity in housing types and affordability levels, 

including by increasing housing that is “affordable to extremely low, very low, 

low, and moderate income households.” Thus, the underlying purpose of the 

project is to increase the volume of housing available to residents with a 

range of incomes. 

Although OSENA challenges the objectives, it does not argue the City 

failed to consider a reasonable range of alternatives. Nor could it 

appropriately do so here because the City considered alternatives ranging in 

size from nine houses to 32 units. OSENA instead argues that the objectives 

13 The sixth objective also uses a target number of 40 housing units. 
30

prevented serious consideration of smaller-sized projects and failed to foster 

informed decisionmaking. OSENA also implies Alternative 3 does not better 

meet the objectives than other alternatives. 

1. Objectives Related to Affordability.

OSENA contends the project does not offer residential units that are 

affordable to “moderate income” families whose income does not exceed 120 

percent of the area’s median income and therefore does not achieve the first 

two objectives. 

Alternative 3 partially attains the “affordable” housing goals because it 

requires the sale or rental of 15 percent of the units in compliance with the 

General Plan definition of “affordable housing.” Alternative 3 also provides 

housing for residents with a range of incomes because it is multi-family 

housing, making it less expensive for working families-and thus more 

“affordable” as that word is used colloquially– than the proposals for 19 or 

nine single family homes, which would be more expensive. 

OSENA argues the second objective is not bona fide because the project 

only requires affordable housing units consistent with the requirements in 

the City’s inclusionary housing ordinance. This argument ignores the limited 

requirement of the City’s inclusionary housing ordinance14 and misstates the 

project’s offerings. Because the underlying purpose of the project is to 

increase the volume of housing, and affordable housing in particular, the 

project’s size impacts how well it achieves that underlying purpose. While all 

of the alternatives provide more affordable housing than currently exists, 

they do not all equally do so. Further, because Alternative 3 is a multi-family 

14 At the time of the EIR, Santa Cruz Municipal Code, § 24.16.020(3)(d) 

required 15 percent of new housing units sold to be made available to lower 

and median income families at reduced prices. 
31

option that provides rental opportunities, it exceeds the requirements of the 

ordinance, which do not require affordable rentals. (See Santa Cruz Mun. 

Code, § 24.020(3)(a) (2018).) 

2. Increase Housing for People with Disabilities.

OSENA next challenges the EIR findings regarding the third objective, 

arguing that the project’s goal of providing housing for people with 

disabilities is not met because the project does not include any services to 

meet the needs of individuals with special needs and only supplies the 

minimum number of handicapped-accessible units otherwise required by law. 

OSENA does not explain why housing must supply particular services to 

support people with disabilities to achieve this objective. As the City notes, 

Alternative 3 includes ADA-accessible units, which provide housing 

opportunities for people with disabilities. 

3. Application Fees

OSENA contends objective 6 is invalid because all construction projects 

must pay application, impact, and permit fees. It is unclear from the parties’

briefs whether some projects benefit from fee reductions or government 

subsidies that may reduce the expenses a project would incur. Regardless, 

because all the alternatives attain this goal, its inclusion or exclusion as an 

objective had no impact on the outcome here.

4. Allegedly Conflicting Objectives

Finally, OSENA argues that objectives 1 and 2 conflict with objective 6 

because the first two objectives relate to affordable housing options while the 

last one seeks to develop housing opportunities in the free market. OSENA 

suggests a project cannot desire to increase more than one type of housing, 

i.e., provide affordable housing and also market rate housing simultaneously. 

However, these goals are not mutually exclusive; a project can provide 
32

additional housing options of varying degrees of affordability, including units 

that are offered at market rate. And even where the underlying purpose of 

some of the objectives is to increase the availability of affordable housing, 

doing so does not preclude the development of other housing, particularly 

where, as here, the selected alternative includes multi-family units that may 

be more accessible to some economic segments of a community than larger, 

single-family homes, which under Alternative 1 would cost $1.7 to $1.9 

million. 

5. Substantial Evidence Supports City’s Conclusion

OSENA ultimately disagrees with the City’s analysis of the 

alternatives and its final conclusion. But whether to reject or approve any of 

the alternatives is a decision only for the decisionmakers. (California Native 

Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 980-981.) 

They may reject alternatives that are undesirable from a policy standpoint 

(id. at p. 1001; Los Angeles Conservancy v. City of West Hollywood (2017) 18 

Cal.App.5th 1031, 1041-1042; City of Del Mar v. City of San Diego (1982) 133 

Cal.App.3d 401, 417 [feasibility includes a consideration of desirability based 

on “reasonable balancing of relevant economic, environmental, social, and 

technological factors”]) as well as alternatives that fail to meet project 

objectives (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 

Cal.App.4th 899, 948-949 (Rialto)). 

The EIR considered each of the alternatives and evaluated the degree 

to which each attained the project objectives and whether the alternatives 

would eliminate or reduce significant impacts. It compared each of the 

alternatives to the original proposal and the no-project option, and it 

recognized that all of the alternatives would reduce the significance of 

environmental impacts to varying degrees. As required, the EIR provided 
33

information about each alternative that showed the major characteristics and 

significant environmental effects of each one. (See Guidelines, § 15126.6, 

subds. (a), (d); Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 547.) 

Thus, there was sufficient information for decisionmakers.

OSENA contends the City council was convinced not to select lower 

density alternatives because they failed to meet the project objectives. This 

would be an appropriate reason not to select an alternative. (Rialto, supra,

208 Cal.App.4th at pp. 948-949.) But none of the alternatives met all the 

objectives, and the EIR still selected Alternative 3 as the superior alternative 

because it best achieved the project’s objectives of increasing housing 

availability while also reducing the severity of the significant impacts, 

conclusions supported by the analysis in the EIR. Notably, the EIR did not 

recommend adoption of any of the alternatives, but the city council 

nonetheless opted to approve a reduced-sized alternative instead of the 40 

units proposed, showing the use of 40 units as a target did not prevent the 

city council from earnestly considering lower density options. 

III.

CUMULATIVE IMPACTS

A. Additional Facts

1. Water Supply and Demand

The EIR analyzes the water supply, drawing from the City of Santa 

Cruz 2015 Urban Water Management Plan (UWMP). The UWMP takes into 

account anticipated population growth and estimates a 20-year water supply 

of about 3,200 million gallons per year (MGY) in 2035. Water supply 

reliability is impacted by a variety of factors, including fish flow release 

requirements, anticipated impacts from climate change, and limited storage 

options. The existing system will not provide a reliable water supply during 
34

prolonged droughts, but the City plans to augment the water supply through 

conservation, recharging of regional aquifers, or advanced treated recycled 

water. 

The project contributes to this environmental condition because the 

housing units will increase demand for water. The EIR estimates the project 

could result in a water demand of approximately 2.0 MGY, or less than one 

hundredth of one percent of the total estimated future water demand within 

the City’s service area. During average and normal years, there are adequate 

supplies. During periods of dry years and drought, the customers in the 

project’s areas would be subject to curtailment and conservation measures. 

The EIR explains “the impact of increased water demand on water supplies 

due to the proposed project is considered less than significant as there are 

sufficient supplies from existing sources to serve the project.”

In the cumulative impact discussion, the EIR states the project will not 

substantially exacerbate water supply reliability because it will not increase 

curtailment measures otherwise required in dry years. It also explains the 

project’s required mitigation measures and payment of the System 

Development Charge reduces the impacts so that the incremental 

contribution to the water supply is not cumulatively considerable. 

2. Traffic Impacts

The recirculated DEIR uses a “level of service” (LOS) measurement to 

describe traffic congestion and delay at intersections based on the amount of 

traffic each roadway can accommodate, in addition to factors like 

maneuverability, driver dissatisfaction, and delay. The study rated 

intersections on an LOS scale of “A” through “F,” with A representing freeflowing conditions and F representing congested conditions. The City’s 

General Plan 2030 seeks to maintain an LOS D or better at intersections 
35

with signals, but it accepts a lower LOS at major regional intersections if 

necessary improvements are prohibitively costly. For state highways, 

Caltrans targets appropriate traffic levels between LOS C and D. If an 

existing highway is operating at less than the appropriate LOS target, the 

existing LOS should be maintained. 

The City determined the project would have a significant impact on the 

traffic system’s circulation. For intersections already operating at LOS D 

and F levels, the City considered the project impacts to be significant if the 

congestion levels at the intersections would become “measurably worse” as a 

result of the project. The EIR recognized that project trips would contribute 

to the existing unacceptable LOS at the Ocean Street/Highway 1 southbound 

offramp, and it considered that contribution to be a significant impact. It 

required the project applicant to contribute to the cost of signalization and 

widening the offramp to reduce congestion and improve the LOS to B. Thus, 

although the EIR concluded that the project would result in an increase in 

daily and peak hour trips, it determined the project would not cause existing 

or planned intersections to operate at an unacceptable LOS. 

The EIR also concluded that the project’s contribution to the daily and 

peak hour trips along the state highway segments was less than significant 

because it would not change the LOS to an unacceptable level. 

The cumulative impact analysis for traffic and transportation 

considered the effect of the project in light of the General Plan 2030. The 

General Plan was based on estimated buildouts using a number of approved 

and foreseeable projects, as well as long-range growth. The buildout 

assumptions provided for an increase of 315 dwelling units, including in the 

Ocean Street neighborhood area, but the original buildout assumed a lowdensity residential designation. 
36

The EIR also concluded that the cumulative traffic would result in 

significant cumulative impacts at several intersections. At those 

intersections where the LOS would continue to be unacceptable, the project’s 

contribution would be less than 25 peak hour trips, which the EIR 

determined was minor because it would not result in discernible changes to 

delays or operations, and therefore was not cumulatively considerable. 

The EIR also noted that Senate Bill No. 743, signed in September 2013, 

made significant changes to how transportation impacts would be assessed. 

It anticipated that vehicle miles traveled (VMT) would be the new metric, 

and it estimated information based on VMT for informational purposes. The 

calculated VMT fell below the state’s suggested threshold of significance, so 

the EIR determined that even under the VMT measure, the project would not 

have a significant impact. 

B. Legal Principles

An EIR must discuss cumulative impacts when a project’s incremental 

effect is cumulatively considerable. (Guidelines, § 15130, subd. (a).) 

Cumulative impacts occur when “two or more individual effects which, when 

considered together, are considerable or which compound or increase other 

environmental impacts.” (Id., § 15355.) However, an EIR may conclude the 

project’s contribution is less than cumulatively considerable if the project “is 

required to implement or fund its fair share of a mitigation measure or 

measures designed to alleviate the cumulative impact. The lead agency shall 

identify facts and analysis supporting its conclusion that the contribution will 

be rendered less than cumulatively considerable.” (Id., § 15130, subd. (a)(3).) 

The Guidelines require the discussion of cumulative impacts to reflect 

the severity of the impact and the likelihood of happening; however, the 

discussion does not need to provide as much detail as is required for effects 
37

attributable solely to the project. (Guidelines, § 15130, subd. (b).) “The 

discussion should be guided by the standards of practicality and 

reasonableness” (ibid); “[a] good faith and reasonable disclosure of the 

cumulative impacts is sufficient” (City of Long Beach v. Los Angeles Unified 

School Dist. (2009) 176 Cal.App.4th 889, 906). 

C. Cumulative Impacts on Water Demand

OSENA contends the EIR draws an incorrect conclusion about the 

significance of the project’s impacts to the water supply. We consider 

whether the EIR provides adequate information to decisionmakers, and we 

review its factual conclusions for substantial evidence. (Laurel Heights,

supra, 47 Cal.3d at pp. 392, 402; Sierra Club, supra, 6 Cal.5th at p. 515; 

North Coast Rivers, supra, 216 Cal.App.4th at pp. 626-627.)

In discussing the project’s impact on water supply, the EIR relies on 

the UWMP, which evaluates the water supply within the City’s system based 

on projected growth within the area for the next 20 years. (Vineyard, supra,

40 Cal.4th at pp. 434-435 [no requirement to “reinvent the water planning 

wheel” for each new land use development].) The UWMP takes into 

consideration population growth when it predicts water supply shortfalls by 

2035. The EIR recognizes this existing problem, and it discusses citywide 

measures that address water supply because of anticipated shortfalls. The 

EIR also considers the project’s contribution to the environmental condition, 

identifying the project as using 2.0 MGY, or less than one-hundredth of one

percent of the estimated future water demand. 

OSENA cites to Kings County Farm Bureau v. City of Handford (1990) 

221 Cal.App.3d 692 (Kings County) and Los Angeles Unified School District v. 

City of Los Angeles (1997) 58 Cal.App.4th 1019 (LA Unified), characterizing 

the City’s approach as an inappropriate ratio analysis, and it argues that the 
38

EIR “improperly focused on the relatively small contribution of the [p]roject 

rather than the City’s severe water supply shortage and the expected growth”

and failed to consider the Project’s impact in light of past, present and future 

projects and the magnitude of the City’s water shortfall.15 However, the 

DEIR analysis is different from the ratio theory used in Kings County. In 

Kings County, the project would have contributed less than one percent to the 

air quality condition, which the agency concluded meant it would be less than 

significant. (Kings County, at pp. 719-720.) The court disapproved of the 

approach, explaining that the cumulative impacts analysis must assess the 

collective and combined effect of the condition. (Id. at p. 721.) There, the EIR 

omitted facts relevant to the collective effect the project and other sources 

would have had on air quality (ibid), but here the EIR discusses the project’s 

contribution to water consumption in the context of the other sources also 

contributing to water consumption, thereby assessing the combined effect of 

the water supply. 

Likewise, the cumulative impacts analysis in LA Unified is different 

from the present case. There, the EIR concluded additional traffic noise from 

the project was not significant because the noise level already exceeded the 

maximum specified by health guidelines. (LA Unified, supra, 58 Cal.App.4th 

at pp. 1024-1025.) The court rejected the approach, concluding it trivialized 

the noise impact and explaining that the issue was whether the additional 

traffic noise should be considered significant in light of the serious existing 

noise problem, a question the City did not consider. (Id. at pp. 1025-1026.) 

Here, the cumulative impacts analysis considers the impact of the additional 

water demand in light of the city-wide needs. Although the EIR discusses the 

15 OSENA does not identify any omitted projects that similarly serve to 

contribute to the water demands. 
39

additional water demand in terms of a percentage (less than one-hundredth 

of one percent), it also looks at the total demand amount (2.0 MGY) and 

explains whether that is significant in light of current water supply 

conditions and future demands. It explains that because the project’s 

consumers will not cause additional curtailment requirements and will be 

subject to city-wide conservation requirements, the impact is less than 

significant. The project’s contribution is not cumulatively considerable 

because its contribution is already accounted for in the UWMP estimates. 

Further, the project is required to mitigate water use by installing 

water conserving fixtures and landscaping, as well as curtailing use based on 

the severity of the drought, and it is required to contribute to a “System 

Development Charge” to pay for system improvements and conservation 

programs designed to help alleviate future water supply issues. Because the 

project implements and funds its share of measures to reduce water supply 

demand, the EIR concludes the project’s contribution is not cumulatively 

considerable, as the Guidelines permit. (See Guidelines, § 15130, 

subd. (a)(3).) Accordingly, the EIR provides adequate information to allow for 

informed decisionmaking, and there is substantial evidence in the record to 

explain to support the City’s conclusions. 

D. Cumulative Impacts on Traffic

In its opening brief, OSENA contends the analysis of cumulative 

impacts on traffic is inadequate because it compares the project’s relative 

impact to the overall magnitude of the problem. It argues the City was 

required to consider the significance of the incremental contribution in light 

of the seriousness of the existing traffic problem but failed to do so. 

Even assuming OSENA is correct, its arguments on this point are moot 

in light of recent amendments to the CEQA Guidelines. (Citizens for Positive 
40

Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 625.) 

After the release of the FEIR in 2018, the California Natural Resources 

Agency adopted revisions to the CEQA Guidelines that established criteria 

for analyzing the significance of traffic impacts. (Pub. Resources Code, 

§ 21099, subd. (b)(1).) Guidelines section 15064.3 became effective July 1, 

2020, and it applies prospectively (Guidelines, §§ 15064.3, subd. (c), 15007, 

subd. (b)). It provides that “a project’s effect on automobile delay shall not 

constitute a significant environmental impact.” (Guidelines, § 15064.3, 

subd. (a).) Because LOS-based traffic analysis is no longer a consideration to 

determine if a project’s impact is significant, the City would be under no 

obligation to conduct a LOS-based analysis on remand. (Citizens, at pp. 625-

626.) 

Further, the Guidelines now identify vehicle miles traveled (VMT) as 

the proper metric for analyzing transportation impacts. (Guidelines, 

§ 15064.3.) The EIR separately addresses the project’s potential impact on 

traffic using the VMT metric that was proposed at the time and concludes the 

impact would be less than significant. OSENA does not challenge this 

analysis or determination on appeal.

IV.

COMPLIANCE WITH SANTA CRUZ MUNICIPAL CODE

A. Additional Facts

In October 2010, the planning commission recommended adoption of a 

PDP for the project, among other things. Neighbors raised concerns about 

mercury air emissions from dental amalgams caused by the adjacent 

crematorium. To explore the issue, the item was continued to the November 

meeting. It was continued again at the November 4, 2010 city council 

meeting, and it was continued indefinitely at the December 2, 2010 meeting. 
41

On June 21, 2018, the project applicants held a community meeting to 

present and discuss the project, and the planning commission held a public 

hearing on August 16, 2018. The planning commission recommended 

approval, and the planning and community development department 

recommended adoption of the PDP. The city council held a public hearing 

about the project at its September 25, 2018 meeting. 

The city council adopted Resolution No. NS-29,449 on September 25, 

2018. The resolution included General Plan and Zoning amendments to 

redesignate the project’s parcel to a multiple residence, low density zone. The 

resolution found the PDP would “allow for variations in off-street parking 

and slope regulations.” It explained the PDP would support the City’s 

Housing Element Goal 1.0. The resolution specifically found that allowing 

development closer than 20 feet from 30 percent slopes (at a 10-foot minimum 

distance) would facilitate the development of residential buildings in a 

cluster manner. It also found the project to be consistent with the purpose of 

the PDP to allow for creative and innovative design to meet the public 

interest and General Plan goals, in particular by allowing for development 10 

feet from a 30-percent or greater slope. And it made the other findings 

required by Santa Cruz Municipal Code sections 24.08.720, et seq. 

OSENA filed a petition for writ of mandamus, arguing the approved 

project violated the municipal code because the City erroneously granted a 

variance through the PDP process without requiring slope modifications to be 

granted “pursuant to procedures set forth in Chapter 24.08, Part 9 (Slope 

Regulations Modifications).” (See Santa Cruz Mun. Code, § 24.08.720.) The 

City opposed the petition, arguing the PDP did not require compliance with 

the slope regulations modifications. 
42

In its tentative ruling, the trial court declined to give the City’s 

statutory interpretation any deference, explaining the court did not find the 

language or context of the code ambiguous. The qualifying language 

“pursuant to” contained in subsection 9 persuaded the trial court that a PDP 

required compliance with the slope modification regulation procedures 

contained in Part 9 of Chapter 24 notwithstanding their inclusion among a 

list of areas available for variance via the PDP. 

At the initial writ hearing, the court commented that the word 

“variation” contained in the disputed provision was a broad term, and it was 

unclear what it meant in the context of the ordinance: “You don’t have to 

comply with anything? Or does it simply mean that the zoning director can 

say, well, you don’t need to do this for slope modification . . . . I don’t know.” 

At its final hearing on the writ, the court told the parties it found the 

statutory language to be clear; it found no ambiguity. It concluded the City 

failed to make the findings required by Santa Cruz Municipal Code 

section 24.08.820 and failed to follow the procedures required by Santa Cruz 

Municipal Code section 24.08.810; the court granted the writ of mandamus

on that limited issue. 

The court told the parties it did not have sufficient familiarity with the 

intricacies of the project or where the lots were laid out, but it appeared that 

no lot could be “established” that created a building site within 20 feet of a 30 

percent slope unless certain procedures were followed. The court also 

explained that to the extent the project was redesigned so that no lot was 

“created which results in a building site within 20 feet of the 30-degree 

slope,” the slope modification regulations would not come into play. 

The court said it thought the parties had stipulated that the project 

authorized the creation of lots which permit a building site or sites within 20 
43

feet of a 30 percent slope. Counsel for the City told the court there had been 

no stipulation to create lots; the City had a single lot that encompassed the 

whole project. The court responded: “So long as there is no building sited 

within 20 feet of a 30 percent slope, there is no violation of the zoning 

ordinance. And that’s the intent of my ruling.” It then specified that “no 

further action [could] be taken in furtherance of the permit, until the city 

ha[d] complied with the slope regulation modification provisions of the 

ordinance, or ha[d] removed the offending building site,” and it told the 

parties the writ was limited to “curing the violation, which has been 

established that the planned development permit was issued without 

compliance with the slope regulation modifications, given the current 

configuration of the project.” 

The court said, “to the extent the project changes so that that [the slope 

regulation modification] violation no longer exists, then the writ could be 

returned, and whatever authorized permits could then issue.” It further 

detailed its expectation: “[W]hat I’m directing the city to rescind is the 

permit itself, until there has been either compliance with the slope regulation 

modification or until the project itself is modified so that it no longer violates

the 20 feet within 30 percent slope provisions.”

The order and judgment states: “Because [the City] did not follow the 

procedures provided in Chapter 24.08, Part 9, . . . and because the proposed 

development would create a new lot that requires a house to be sited within 

twenty feet of a thirty-percent slope, [the City] committed a prejudicial abuse 

of discretion by failing to proceed in a manner required by law.”

B. Relevant Municipal Code Sections

Chapter 24 of the Santa Cruz Municipal Code addresses zoning. The 

ordinance’s purpose among other things, is to “prevent unnecessary 
44

regulation or arbitrary restrictions in the exercise of private initiative of 

property use” and to “establish simple and readily available procedures 

through which private individuals or groups, the planning department, the 

planning commission, or the city council may initiate zoning changes as 

evolving community needs dictate.” (Santa Cruz Mun. Code, § 24.02.020.) 

Part 8 of the zoning ordinance addresses land use permits and findings. 

It contains the ordinances detailing the requirements for variances (Santa 

Cruz Mun. Code, § 24.08.100 et seq.); slope regulation modifications (id.,

§ 24.08.800 et seq.); development agreements (id., § 24.08.2500); and various 

permits, including PDPs (id., § 24.08.700). 

A PDP “allows deviation from conventional zoning in a number of 

areas,” which the code details. (Branciforte Heights, LLC v. City of Santa 

Cruz (2006) 138 Cal.App.4th 914, 920, fn.2; see Santa Cruz Mun. Code, 

§ 24.08.720.) The PDP process is intended to allow for innovation and 

creativity in site planning to benefit the public and the developer. (Santa 

Cruz Mun. Code, § 24.08.710.) For a PDP to be granted, there must be 

findings that the project is consistent with the General Plan and the purpose 

of the PDP zoning chapter; its variations to the regulations serve the public 

to an equal or higher degree than the underlying district regulations; it can 

be coordinated with development of surrounding areas; and the project 

provides greater open space than would be permitted by underlying 

regulations. (Santa Cruz Mun. Code, § 24.08.770.) Before the permit is 

granted, the zoning board holds a public hearing and makes a 

recommendation to the city council. (Santa Cruz Mun. Code, § 24.08.760.)

The General Provisions section of the PDP part of the code states that 

“[a] planned development permit provides variation on district regulation, 

where appropriate,” and it identifies 10 areas of variation, listing them:
45

“1. Building setbacks.

“2. Street standards.

“3. Lot coverage.

“4. Parking and loading.

“5. Landscaping.

“6. Open space.

“7. Lot area.

“8. Uses. 

“9. Slope modifications, pursuant to procedures set forth in 

Chapter 24.08, Part 9 (Slope Regulations Modifications).

“10. Height, not to exceed one story or twenty percent of 

height (in feet) over and above regulations established in 

district regulations for the district in which the project is 

proposed.” (Santa Cruz Mun. Code, § 24.08.720.) 

The section concludes with the statement that “[a]ll aspects of the proposed 

development which represent a departure from strict application of district 

regulations shall be explained in the application and reasons given why the 

proposed development plan affords greater public benefits than would be 

achieved through application of conventional zoning regulations.” (Ibid.)

C. Standards of Review

At issue here is how to interpret paragraph 9. OSENA contends that to 

comply with the PDP variance requirements, an applicant must follow the 

procedures found in Chapter 24.08, Part 9 for any slope modifications. The 

City argues the inclusion of the slope regulation modifications provided in 
46

Chapter 24.08, Part 9 on the list of areas for variation in a PDP means an 

applicant does not have to comply with the modification procedures provided 

in Part 9. 

We review disputes over the interpretation of a statute or ordinance de 

novo. (Audio Visual Services Group, Inc. v. Superior Court (2015) 233 

Cal.App.4th 481, 489 (Audio Visual).) “[W]e accord no deference to the trial 

court’s ruling on this issue.” (Save Our Heritage Organisation v. City of San 

Diego (2015) 237 Cal.App.4th 163, 174.) When interpreting an ordinance, we 

apply the same rules of interpretation applicable to statutes. (Ibid.) Thus, 

we first examine the language of the ordinance, giving the words their usual 

and ordinary meaning, in the context of the ordinance as a whole and its 

purpose. (Audio Visual, at p. 489.) In addition, we “apply common sense to 

the language at hand” and interpret a provision in a manner that makes “it 

workable and reasonable” and avoids an absurd result. (Wasatch Property 

Management v. Degrate (2005) 35 Cal.4th 1111, 1122.) 

“Whether judicial deference to an agency’s interpretation is appropriate 

and, if so, its extent—the ‘weight’ it should be given—is . . . fundamentally

situational.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 

19 Cal.4th 1, 12.) The interpretation of an ordinance or other legislation by 

its enacting body “is of very persuasive significance.” (City of Walnut Creek v. 

County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021.) “Deference is 

particularly appropriate where, as here, the agency is interpreting its own 

language, drafted to suit a particular circumstance, rather than the language 

drafted by the Legislature.” (Bello v. ABA Energy Corp. (2004) 121 

Cal.App.4th 301, 318 (Bello).) 

Although we consider the plain language of the statute, we consider it 

in context and with reference to its purpose. (Audio Visual, supra, 233 
47

Cal.App.4th at p. 489; Woodland Park Management, LLC v. City of East Palo 

Alto Rent Stabilization Bd. (2010) 181 Cal.App.4th 915, 923 (Woodland) 

[courts can determine if literal meaning of statute comports with its 

purpose].) Moreover, we recognize that sometimes the meaning of a statute 

is not properly determined from a word or phrase in a sentence; a literal 

construction should not prevail when it is contrary to the statute’s intent. 

(Woodland, at p. 923.) 

D. The City Did Not Violate its Municipal Code

1. The City Complied with the PDP Requirements.

The City argues the trial court improperly declined to give deference to 

the City’s interpretation of its municipal code and focused on the words 

“pursuant to” without regard to the context of their use. We agree. OSENA 

argued below, as it does here, that the inclusion of the words “pursuant to”

following “Slope regulation modifications” means, unambiguously, that the 

project developer must comply with the provisions of Chapter 24.08, Part 9. 

The trial court agreed; its tentative ruling stated it did not find the language 

or context of the code ambiguous, and so it was not giving the City’s 

interpretation deference. But the court acknowledged during the hearing 

that the General Provisions subsection’s reference to “variations” was broad, 

and it also told the City the language in the ordinance “created confusion.” 

When we read subdivision 9 in the context of the remaining items on 

the list and with the purpose of the PDP section in mind, we reach a different 

conclusion: The City’s interpretation is consistent with the ordinance text. 

The General Provision section explains that it provides a “variation” and a 

“departure” from the listed regulations. (Santa Cruz Mun. Code, 

§ 24.08.720.) In other words, it provides a variation to the slope regulations 
48

modification procedures identified in subdivision 9 because project applicants 

already have to follow the slope modification procedures. 

Under OSENA’s interpretation of the language, a project applicant 

would need to apply for a PDP and, as part of that application process, also 

separately apply for a slope modification following the requirements of 

section 24.08.720. Under that interpretation, subdivision 9 creates a 

redundancy and serves no readily apparent purpose. (See Woodland, supra, 

181 Cal.App.4th at p. 926 [rejecting ordinance interpretation that serves no 

apparent purpose].) Had the City intended PDP applicants to comply with 

the slope modification requirements, it would have achieved that result 

simply by omitting slope modifications as an area of variation available 

through the PDP process. 

The difference in wording of the slope modification procedures as 

compared to the preceding areas on the list which concerned the court is 

easily explained. Other than subdivision 9, none of the areas listed for 

variation via the PDP has a separate Part in the code devoted to a 

modification procedure, which distinguishes slope modifications from other 

types of variations.16 Additionally, the other areas identified in the General 

Provisions section for variances via the PDP have regulations scattered 

throughout the code. (See, e.g., Santa Cruz Mun. Code, §§ 24.10.110 [height 

limits]; 24.10.130 [yard or open space limitations]; 24.10.450 [open space 

16 Portions of the Santa Cruz Municipal Code address building setbacks 

or parking variations explicitly. However, they are unlike the slope 

regulation modifications because they do not just detail procedures for 

seeking modifications; they detail the specific modifications and variances 

available. (See Santa Cruz Mun. Code, §§ 24.12.110, 24.12.290.)
49

regulations for multiple residence - low density]; 24.10.585 [open space for 

high density multiple residences]; 24.08.440 [substandard residential lot 

coverage]; 24.16.140 [lot coverage for accessory dwelling units].) 

OSENA’s argument that a procedure for simultaneously seeking a PDP

and a slope modification permit is anticipated in Santa Cruz Municipal Code 

section 24.08.810 is unpersuasive. Santa Cruz Municipal Code section 

24.08.820 includes a provision that precludes granting a permit for a slope 

modification without a hearing if it is accompanied by an application that 

must be heard by a higher body. OSENA contends a PDP is just such an 

application, but it offers no evidence to support this claim. And the claim

ignores that there are other situations to which the language applies, 

including requests for other types of permits or zoning map amendments, 

which require public hearings. (See Santa Cruz Mun. Code, §§ 24.04.130 

[detailing permits and actions requiring public hearings]; 24.08.030 

[administrative use permit]; 24.08.240 [special use permit]; 24.08.920 

[historic alteration permit].)

Moreover, OSENA’s contention that the City’s interpretation is 

somehow faulty because the DEIR explicitly acknowledges in one location 

that conventional slope regulations apply lacks merit because the FEIR 

corrects that statement, and other statements in the EIR make clear a PDP 

provides a variation from the conventional slope regulations. 

Unlike the trial court, we offer deference to the City here. Doing so is 

appropriate because we are evaluating a code section the City itself 
50

developed.17 (See Bello, supra, 121 Cal.App.4th at p. 319.) Assuming it is 

reasonable to treat the words “pursuant to” in subdivision 9 as requiring 

compliance with Part 9, the slope modification regulations procedures, we 

would nonetheless defer to the City’s interpretation here because it is equally 

reasonable to treat “pursuant to,” a phrase that follows a comma, as 

introducing a descriptor rather than a mandate, i.e., the area of variation is 

the slope regulation modifications, which have detailed procedures in Part 9 

of Chapter 24.08. (See Craik, at p. 891 [deferring to county’s construction of 

its own ordinance where equally reasonable views reach differing 

conclusions]; Bello, at p. 319.) Further, the City’s interpretation is consistent 

with the legislative intent of the PDP to allow creative and innovative design 

to meet the public interests more readily than through application of the 

conventional zoning regulations, which are more cumbersome. (See Santa 

Cruz Mun. Code, § 24.08.700.) Accordingly, we conclude the City did not 

17 OSENA contends the City’s interpretation of its own ordinance is 

undeserving of deference because the interpretation was not formulated 

contemporaneously with the adoption of the regulation. However, this 

consideration is more appropriate when evaluating an agency’s interpretation 

of a statute drafted by a different body. (See Eskeland v. City of Del Mar

(2014) 224 Cal.App.4th 936, 946; see also Craik v. County of Santa Cruz

(2000) 81 Cal.App.4th 880, 891 (Craik).)
51

violate the municipal code by granting a slope modification as part of the 

PDP.18

2. The Project Does Not Create New Lots.

OSENA contends the project also violates Santa Cruz Municipal Code 

section 24.14.030, subdivision (1)(h), a subdivision of the code’s slope 

regulations. Under that provision, “[n]o new lot shall be created which will 

require the house to be sited within twenty feet of a thirty-percent slope.”

(Santa Cruz Mun. Code, § 24.14.030, subd. (1)(h).) OSENA argues that 

because the project creates a “new lot,” the City is prohibited from building 

within 20 feet of a 30 percent slope.19 However, the City explains that the 

project does not create new lots; thus, this provision does not apply. 

The Santa Cruz Municipal Code defines a “lot” as a “piece or parcel of 

land, occupied or intended to be occupied, or capable of being occupied, by a 

permitted principal building or a group of such buildings . . . .” (Santa Cruz 

Mun. Code, § 24.22.494.) The project has been designed on an alreadyexisting lot of land, one that is intended to be occupied by a permitted group 

of buildings. There is no evidence in the record that the City has requested to 

18 Although not necessary to our conclusion regarding the meaning of 

subdivision 9 in section 24.08.720, we note that the City addressed slope 

stability and other potential concerns via geotechnical analyses and testing 

by geotechnical engineers, as well as through studies and testing by civil 

engineers and soils experts, as required by other provisions in the code. (See 

Santa Cruz Mun. Code, §§ 24.14.060 [erosion hazards]; 24.14.070 [seismic 

hazards]; 18.45.010 et seq. [excavation and grading regulations].) The 

reports indicate that the project design will improve slope stability. 

19 Santa Cruz Municipal Code section 24.14.030 contemplates slopes on 

existing lots. Buildings can be added to existing lots within 20 feet of a 30 to 

50 percent slope if an exception or variance is granted. (Santa Cruz Mun. 

Code, § 24.14.030, subd. (1)(d).)
52

divide the existing lot into smaller lots to build upon. OSENA more or less 

concedes this by explaining that the City here approved “a tentative map and 

condominium plan that place residential buildings on a single lot” and then 

by arguing the City “essentially” created a lot placing residential buildings on 

it, because it contends approval of a tract map and a condominium plan 

creates a lot. But OSENA does not explain why that must be so under these 

circumstances. The project applicant sought approval of a tentative map for 

potential future sales of condominium units (see Santa Cruz Mun. Code, 

§ 23.16.050), but that approval did not alter the fact that the project was 

building 32 units on a single lot of land. Accordingly, Santa Cruz Municipal

Code section 24.14.030, subdivision (1)(h) does not apply.

OSENA also argues the City failed to make this argument before the 

trial court. However, when the court commented it believed the parties had 

stipulated that the project authorized the creation of lots, the City 

contradicted the court’s statement and clarified there was a single lot; it was 

not creating new lots. 

The court seemed unconcerned about the distinction, explaining its 

intent was to prohibit a building within 20 feet of a 30 percent slope until the 

City complied with the slope modification provisions. Although the judgment 

states the City committed a prejudicial abuse of discretion in part because 

the project would create a new lot with a house sited within 20 feet of a 30 

percent slope, the court’s admission that it did not have sufficient familiarity 

with the intricacies of the project or where lots were laid out belies any claim 

the court expressly found the project was creating new lots for the multi-unit 

buildings.

Instead, the court focused on the slope regulation modification 

requirements found in subdivision (1)(d): “[W]hat I’m directing the city to 
53

rescind is the permit itself, until there has been either compliance with the 

slope regulation modification or until the project itself is modified so that it 

no longer violates the 20 feet within 30 percent slope provisions.” In other 

words, the court was concerned about compliance with the slope modification 

regulation procedures.

3. Building Setbacks and Slope Regulations are Handled Separately.

Finally, the City contends that because the PDP allows variances to 

building setbacks, it can permit building within 20 feet of a 30 percent slope, 

as slope regulations are a type of building setback. We need not reach this 

issue, having already determined that the City properly sought a variance for 

slope modifications via the PDP process. However, were we to consider this 

issue on the merits, we would conclude the trial court appropriately 

concluded setbacks and slope regulations are separately regulated. 

We recognize that the slope regulations create a type of setback in the 

conventional sense, because they prohibit building within a certain distance 

from a slope. (See Santa Cruz Mun. Code, § 24.14.030.) However, the 

municipal code addresses setbacks separately from slope regulations. Not 

only is this apparent in the General Provisions of the PDP (id., § 24.08.410), 

where they are separately referenced, and in section 24.14.030, which 

provides slope regulations but does not mention setbacks, but it also 

apparent throughout the code. The District Regulations, which define the 

setback requirements for various types of dwelling units, identify the 

minimum setbacks for front yard space, rear space, and side yard space, as 

well as the minimum distance between buildings and the requirements for 

attached garages or carports. (Id., §§ 24.10.585, subd. (2) [high density 

districts]; 24.10.608, subd. (2) [medium density districts]; 24.10.616, subd. (2) 

[motel residential districts]; 24.10.632, subds. (1), (2) & (3)(b)(1) [beach 
54

residential]; 24.10.640, subds. (1), (2) [beach medium/high density 

residential].) But there is no mention of setbacks from slopes.20 (Ibid.) 

DISPOSITION

We reverse the order and judgment granting the limited writ of 

mandamus and remand the matter to the superior court with instructions to 

vacate that portion of the judgment that commands the City to set aside 

approval of the Planned Development Permit pursuant to Resolution 

No. NS-29,949 for the 1930 Ocean Street Extension Residential Project as it 

pertains to variations from slope regulations, as approved by the City Council 

of the City of Santa Cruz on September 25, 2018. We further direct the trial 

20 Slopes are also mentioned in section 24.08.450 in the design 

subdivision addressing grading for large homes in single family areas, not in 

the subdivision addressing setbacks. (Santa Cruz Mun. Code, § 24.08.450, 

subds. (4)(d) & (f)(1).)
55

court to strike the related injunctive relief. In all other respects the 

judgment is affirmed.21 Parties to bear their own costs. 

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

21 The court entered judgment in favor of OSENA. The judgment also 

granted OSENA permission to file a Memorandum of Costs (Cal. Rules of 

Court, rule 3.1700) and to request an award of attorney fees as the prevailing 

party (Cal. Rules of Court, rule 3.1702). We leave this issue for the parties 

and the court to address on remand in a manner consistent with this opinion.