1

Filed 10/8/13 South County Citizens v. County of Nevada CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

----

SOUTH COUNTY CITIZENS FOR SMART 

GROWTH,

Plaintiff and Appellant,

v.

COUNTY OF NEVADA et al.,

Defendants and Respondents;

KKP LAKE OF THE PINES, LLC,

Real Party in Interest and Respondent.

C067764

(Super. Ct. No. 75402)

Petitioner South County Citizens for Smart Growth (Smart Growth) appeals from 

the trial court‟s denial of its petition for writ of mandate in which Smart Growth alleged 

that the County of Nevada (the County) violated various provisions of the California 

Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in approving 
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a commercial real estate project in Nevada County.1 Smart Growth contends we must 

reverse the judgment because (1) the County failed to prepare and recirculate a revised 

draft EIR adding an alternative project proposal recommended by staff for the Nevada 

County Planning Commission (the staff alternative); (2) the County failed to make any 

findings regarding the feasibility of the staff alternative; and (3) the County relied on 

future traffic improvements that have not been approved yet in order to declare the 

revised project‟s traffic impacts less than significant.

We conclude (1) the County did nor err in failing to prepare and recirculate a 

revised draft EIR adding the staff alternative, because the staff alternative was not 

“significant new information” within the meaning of the CEQA Guidelines; (2) the 

County was not required to make findings regarding the feasibility of the staff alternative 

because the alternative was proffered after preparation of the final EIR and adequate 

alternatives were discussed in the EIR; and (3) the County did not rely on future traffic 

improvements, but instead relied on the current actual use of the road in question, rather 

than its current traffic designation.

We will affirm the judgment.

BACKGROUND

This appeal arises from the County‟s decision to approve the Higgins Marketplace 

Project (the project) in southwestern Nevada County. Real Party in Interest Katz 

Kirkpatrick Properties (KKP) submitted the application for the project to the County in 

2005. The 20.07 acre site consisted of one parcel owned by the Tintle family, but KKP 

had an option to purchase the northern portion of the site. The original proposal involved 

 

1 Undesignated statutory references are to the Public Resources Code. All references to 

Guidelines are to the CEQA Guidelines, which implement the provisions of CEQA. (Cal. 

Code Regs., tit. 14, § 15000 et seq.) These guidelines are binding upon all state and local 

agencies in applying CEQA. (Schellinger Brothers v. City of Sebastopol (2009) 179 

Cal.App.4th 1245, 1256, fn. 12.)
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subdivision of the site into 10 parcels for commercial, light industrial, and office uses. 

On five of the parcels (approximately 10.58 acres), the proposal called for a 59,800 

square-foot retail store (expected to be a Bel-Air Market), two retail buildings (one 

13,200 square feet and the other 6,500 square feet), two 3,500 square-foot drive-through 

fast-food restaurants, and 482 parking stalls. No development was proposed for four 

other parcels (approximately 5.07 acres), which would continue to be owned by the 

Tintle family, although the proposal allowed for future development of approximately 

42,000 square feet of light industrial and office spaces. The last parcel, which was 

around 3.26 acres, was designated to retain existing wetlands and to provide a 25-foot 

buffer between the developed parcels and the onsite wetlands. The proposal also 

included a proposed habitat management plan, as required by the County Code because 

the wetland buffer was less than 100 feet. 

In November 2007, the County published a draft environmental impact report 

(draft EIR) analyzing the project‟s potential significant impacts on the environment, and 

identifying potentially feasible mitigation measures and alternatives that would minimize 

or avoid potential significant impacts. The draft EIR identified two significant traffic 

impacts and one significant cumulative air quality impact that could not be reduced to 

less than significant levels even with the implementation of the mitigation measures 

identified in the draft EIR. All other potentially significant impacts would be reduced to 

less than significant levels with the implementation of mitigation measures. 

In January 2008, the Nevada County Planning Commission (Planning 

Commission) held a public hearing to receive comments on the draft EIR. At the request 

of members of the public, the Planning Commission extended the public comment period. 

During the extended comment period, KKP submitted a letter that included a peer review 

of the draft EIR‟s traffic analysis and a proposal to reduce the size of the Bel-Air to help 

reduce the project‟s traffic impacts. At the request of KKP, Pitney Bowes Map Info 

submitted a letter updating the distribution of projected patrons to the project site, which 
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could influence traffic patterns. The Planning Commission extended the public comment 

period again until February 29, 2008, to give the public the opportunity to comment on 

KKP‟s additional submissions. 

The County‟s environmental consultant prepared responses to the written and oral 

comments received at the hearing on the draft EIR. The final EIR -- which consisted of 

the draft EIR, the responses to comments, and associated appendices -- was released for 

public review on October 30, 2008. Following release of the final EIR, but prior to the 

Planning Commission‟s hearing on the document, four more comment letters were 

received, including a letter from Smart Growth‟s counsel. The County‟s environmental 

consultant prepared responses to the late comments, and the County included the late 

comments and the responses in an appendix to the final EIR. 

On January 8, 2009, the Planning Commission held a hearing on the final EIR to 

consider whether to recommend that the Nevada County Board of Supervisors (the 

Board) (1) certify the final EIR, and (2) approve the legislative actions required for the 

project (including the general plan amendment and rezone). The staff report prepared for 

the Planning Commission hearing recommended that the Planning Commission vote to 

recommend that the Board approve a modified version of the project, the staff alternative, 

in order to address concerns over the project‟s air quality and traffic impacts. The staff 

alternative built upon alternative 4 in the draft EIR (the “Redesign/Reduced Density” 

alternative), which provided for a reduction in overall retail development. The staff 

alternative would cap commercial property at 75,000 square feet, have 10 acres of open 

space, increase the wetland buffer from 25 to 100 feet, and prohibit fast food restaurants 

due to their high traffic generation. The Planning Commission voted three to two to 

recommend that the Board approve the staff alternative, and the Planning Commission 

unanimously voted to recommend that the Board certify the final EIR. 

Thereafter, KKP worked to address the Planning Commission‟s concerns and 

revise the project based on the Planning Commission‟s recommendations. KKP 
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submitted two alternatives that would reduce the project‟s footprint and eliminate fast 

food restaurants. The overall number of proposed buildings was reduced from five to 

four, and the total square footage was reduced from 86,500 square feet to 75,710 square 

feet. KKP‟s first alternative included a 100-foot setback from the onsite wetlands, but 

would reduce landscaping and cause parking space conflicts with the major interior 

circulation routes. KKP‟s second alternative included a 50-foot nondisturbance setback 

from the wetland area, with a 20-foot buffer zone and greater landscaping. Planning 

Commission staff conferred with a biological consultant concerning the setback and 

buffer, concluded that KKP‟s second alternative was preferable, and recommended to the 

Planning Commission that it recommend KKP‟s second alternative to the Board. 

The primary differences between the staff alternative and KKP‟s second 

alternative were that in KKP‟s second alternative (1) the Tintle family property was 

allowed to keep its existing business park designation on 3.03 acres and the proposed 

office professional designation on 0.78 acres; (2) the wetland setback would be 50 feet 

rather than 100 feet, but an additional 20 feet was added as a buffer, making the overall 

reduction to the setback only 30 feet; (3) the total square footage of community 

commercial designations was increased from 75,000 square feet to 75,800 square feet; 

and (4) open space was reduced by approximately four acres.2 

Consistent with the staff recommendation of KKP‟s second alternative (hereafter 

also referenced as the revised project), the proposed tentative parcel map was modified to 

coincide with the new site plan, with seven parcels divided as follows: one for each 

building, one for the wetlands/open space parcel, and two for the Tintle property parcels, 

which the Tintles intended to retain after the sale to KKP. In response to objections from 

 

2 There was a dispute concerning whether it was appropriate to designate roads as open 

space. The staff alternative included roads as open space but KKP‟s second alternative 

did not. 
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the Tintles, the revised project would continue to allow the future development of their 

parcels for commercial uses as permitted by existing zoning standards. However, 

development would be limited to 26,000 square feet of building space. 

On May 28, 2009, the Planning Commission held a meeting to consider (1) the 

details of the revised project, and (2) whether to recommend that the Board certify the 

final EIR. Due to a procedural error in noticing the meeting, the Planning Commission 

did not discuss the details of the revised project at that time. Instead, it voted five to zero 

that the final EIR adequately encompassed the revised project, and it recommended that 

the Board certify the final EIR. However, on June 11, 2009, the Planning Commission 

met again and discussed the details of the revised project. The Planning Commission 

voted to recommend that the Board approve the revised project (KKP‟s second 

alternative) rather than the staff alternative, and that the Board approve the legislative 

actions associated with the revised project. 

On July 7, 2009, the Board held a public hearing to consider the final EIR, and 

whether to approve the associated legislative actions. Smart Growth‟s attorney submitted 

a lengthy comment letter on the final EIR at the beginning of the hearing. To allow time 

to consider the letter, the Board continued the meeting until mid-August. In light of the 

lengthy comment letter and other letters that were received, additional responses to 

comments were prepared and incorporated into the final EIR. 

On August 18, 2009, the Board held two public hearings: one to consider the final 

EIR and the other to consider the legislative actions. The Board voted to certify the final 

EIR and approve the legislative actions. 

Smart Growth timely filed a petition for writ of mandate in superior court. As 

relevant to the present appeal, Smart Growth asserted in a second amended petition that 

the County violated CEQA by (1) failing to prepare and recirculate a revised draft EIR 

with the staff alternative, which was a potentially feasible alternative and would have less 

impact on the environment than the revised project; (2) failing to make any findings or 
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otherwise cite to substantial evidence explaining why the staff alternative should not or 

could not be approved; (3) asserting that traffic impacts were mitigated to “less than 

significant” levels by administratively redesignating an affected road as a minor arterial 

without any change to actual traffic conditions on the impacted road; and (4) finding that 

the revised project‟s impacts on traffic conditions would be less than significant. After 

reviewing the administrative record, the trial court rejected these contentions and denied 

the petition for writ of mandate. 

STANDARD OF REVIEW

Section 21168.5 provides that a court‟s inquiry in an action to set aside an 

agency‟s decision under CEQA “shall extend only to whether there was a prejudicial 

abuse of discretion. Abuse of discretion is established if the agency has not proceeded in 

a manner required by law or if the determination or decision is not supported by 

substantial evidence.” The Guidelines define “substantial evidence” as “enough relevant 

information and reasonable inferences from this information that a fair argument can be 

made to support a conclusion, even though other conclusions might also be reached.” 

(Guidelines, § 15384, subd. (a).) 

“ „The court does not pass upon the correctness of the EIR‟s environmental 

conclusions, but only upon its sufficiency as an informative document.‟ [Citation.]” 

(Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 

Cal.3d 376, 392, 407 (Laurel Heights I).) “We may not set aside an agency‟s approval of 

an EIR on the ground that an opposite conclusion would have been equally or more 

reasonable.” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 

564 (Goleta II).) Furthermore, “[t]he appellate court reviews the agency‟s action, not the 

trial court‟s decision; in that sense appellate judicial review under CEQA is de novo.” 

(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 

40 Cal.4th 412, 427 (Vineyard Area Citizens).)
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DISCUSSION

I

Smart Growth contends the County violated CEQA‟s mandatory procedures by 

failing to prepare and recirculate a revised draft EIR with the staff alternative. Before 

addressing this contention, it will be helpful to set forth the relevant CEQA framework 

and address the difference between (1) the determination, during the scoping process, of 

whether to include alternative projects in the draft EIR and the adequacy of the chosen 

alternatives, and (2) the determination of whether to recirculate an EIR when significant 

new information is added concerning a feasible project alternative. 

A

“The core of an EIR is the mitigation and alternatives sections. The Legislature 

has declared it the policy of the State to „consider alternatives to proposed actions 

affecting the environment.‟ [Citations.] . . . [¶] In determining the nature and scope of 

alternatives to be examined in an EIR, the Legislature has decreed that local agencies 

shall be guided by the doctrine of „feasibility.‟ „[I]t is the policy of the state that public 

agencies should not approve projects as proposed if there are feasible alternatives or 

feasible mitigation measures available which would substantially lessen the significant 

environmental effects of such projects . . . .” (Goleta II, supra, 52 Cal.3d at pp. 564–565, 

original italics.) 

“CEQA establishes no categorical legal imperative as to the scope of alternatives 

to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be 

reviewed in light of the statutory purpose. . . . [A]n EIR for any project subject to CEQA 

review must consider a reasonable range of alternatives to the project, or to the location 

of the project, which: (1) offer substantial environmental advantages over the project 

proposal ([] § 21002); and (2) may be „feasibly accomplished in a successful manner‟ 

considering the economic, environmental, social and technological factors involved.” 

(Goleta II, supra, 52 Cal.3d at p. 566, original italics.) 
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The range of alternatives that must be discussed and their level of analysis are 

subject to a “rule of reason.” (Laurel Heights I, supra, 47 Cal.3d at p. 407; Guidelines, 

§ 15126.6, subd. (f) [an EIR must “set forth only those alternatives necessary to permit a 

reasoned choice”].) “„Absolute perfection is not required; what is required is the 

production of information sufficient to permit a reasonable choice of alternatives so far as 

environmental aspects are concerned.‟ [Citation.]” (Village Laguna of Laguna Beach, 

Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1029 (Village Laguna).) The 

EIR is not required to set forth every conceivable alternative (Jones v. Regents of 

University of California (2010) 183 Cal.App.4th 818, 826-827), given that in some cases 

“there are literally thousands of „reasonable alternatives‟ to the proposed project.” 

(Village Laguna, supra, 134 Cal.App.3d at p. 1028.) 

The scoping process is the screening process by which a local agency makes its 

“initial determination as to which alternatives are feasible and merit in-depth 

consideration, and which do not.” (Goleta II, supra, 52 Cal.3d at p. 569; see Guidelines 

§ 15083.) It involves “consult[ation] directly with any person or organization [the lead 

agency] believes will be concerned with the environmental effects of the project” in 

hopes of “solv[ing] many potential problems that would arise in more serious forms later 

in the review process.” (Guidelines, § 15083.) It takes place after notice of preparation 

has been sent out and prior to completion of the draft EIR. (Gilroy Citizens for 

Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 917, fn. 5; 

Guidelines § 15083.)

The determination of whether to include an alternative during the scoping process 

is whether the alternative is potentially feasible (Mira Mar Mobile Community v. City of 

Oceanside (2004) 119 Cal.App.4th 477, 489 (Mira Mar)), and the EIR “is required to 

make an in-depth discussion of those alternatives identified as at least potentially 

feasible.” (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1504, fn. 5, 

italics omitted.) Differing factors come into play when the final decision on project 
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approval is made; at that juncture the decisionmaking body evaluates whether the 

alternatives are actually feasible. (Guidelines, § 15091, subd. (a)(3).) “[T]he decision 

makers may reject as infeasible alternatives that were identified in the EIR as potentially 

feasible.” (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 

957, 981.) 

The feasibility of a new alternative proffered after the scoping process, and after 

the draft EIR is circulated, is one of the factors to be considered in determining whether 

to recirculate an EIR, but not the only factor. (Guidelines, § 15088.5, subd. (a)(3).) 

According to CEQA, recirculation is required only when significant new information is 

added to the EIR after public notice is given of the availability of the draft EIR for public 

review but before certification. (§ 21092.1; Guidelines, § 15088.5, subd. (a).) “New 

information added to an EIR is not „significant‟ unless the EIR is changed in a way that 

deprives the public of a meaningful opportunity to comment upon a substantial adverse 

environmental effect of the project or a feasible way to mitigate or avoid such an effect 

(including a feasible project alternative) that the project‟s proponents have declined to 

implement. „Significant new information‟ requiring recirculation include, for example, a 

disclosure showing that: [¶] . . . [¶] (3) A feasible project alternative or mitigation 

measure considerably different from others previously analyzed would clearly lessen the 

significant environmental impacts of the project, but the project‟s proponents decline to 

adopt it.” (Guidelines, § 15088.5, subd. (a)(3).) 

In other words, recirculation is not required simply because new information is 

added. As the California Supreme Court observed in Laurel Heights Improvement Assn. 

v. Regents of University of California (1993) 6 Cal.4th 1112 (Laurel Heights II), “the 

final EIR will almost always contain information not included in the draft EIR” given the 

CEQA statutory requirements of circulation of the draft EIR, public comment, and 

response to these comments prior to certification of the final EIR. (Id. at p. 1124.) But 
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“[r]ecirculation was intended to be an exception, rather than the general rule.” (Id. at 

p. 1132.) 

An express finding is not required on whether new information is significant; it is 

implied from the agency‟s decision to certify the EIR without recirculating it. (Laurel 

Heights II, supra, 6 Cal.4th at p. 1133 [“CEQA does not require an express order or 

finding on the subject of whether to recirculate a final EIR”]; Western Placer Citizens for 

an Agricultural & Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890, 

904 (Western Placer Citizens) [a written finding is not required; “[b]y certifying the 

[final EIR], the Board necessarily concluded the new information did not require 

recirculation and additional public comment”].) Furthermore, “all new information 

occurring after release of the final EIR but prior to certification and project adoption need 

not be included in the EIR before the agency determines whether the new information is 

significant so as to trigger revision and recirculation.” (Western Placer Citizens, supra,

144 Cal.App.4th at p. 902.) 

B

After the final EIR had been circulated, the Planning Commission voted to 

recommend that the Board certify the final EIR and approve the staff alternative. 

Thereafter, however, KKP submitted its second alternative addressing some of the 

Planning Commission‟s concerns; KKP‟s second alternative was recommended by 

Planning Commission staff and the Planning Commission as the revised project; and the 

Board ultimately approved the revised project.

Under its first argument heading, Smart Growth does not challenge the adequacy 

of the various alternatives that were included and discussed in the draft EIR as a result of 

the scoping process. Nor does Smart Growth challenge the County‟s failure to recirculate 
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the final EIR with a discussion of the revised project.3 Rather, the only challenge Smart 

Growth raises is that when the Planning Commission initially voted to approve the staff 

alternative, and before the Planning Commission recommended KKP‟s second alternative 

as the revised project, the County should have prepared and recirculated a revised draft 

EIR with the staff alternative. Smart Growth argues that because the County did not do 

so, the public was deprived of the opportunity to comment on a feasible alternative in 

violation of CEQA‟s mandatory disclosure procedures. Smart Growth further contends 

that because the County failed to proceed in the manner required by law, the applicable 

standard of review is abuse of discretion. 

Smart Growth does not identify any CEQA statute, guideline or judicial decision 

mandating that where an EIR includes a reasonable range of alternatives, then any 

additional alternative, even if proffered after the final EIR is released, must be added to 

the EIR or else the agency will not have proceeded in a manner required by law and will 

have violated CEQA‟s disclosure requirements. As we explained above, “all new 

information occurring after release of the final EIR but prior to certification and project 

adoption need not be included in the EIR before the agency determines whether the new 

information is significant so as to trigger revision and recirculation.” (Western Placer 

Citizens, supra, 144 Cal.App.4th at p. 902.) Moreover, the failure to recirculate the final 

EIR is not a failure to proceed in the manner required by law unless the staff alternative 

meets the factual definition of “ „significant new information.‟ ” (Guidelines, § 15088.5, 

subd. (a)(3).) A determination whether new information is “ „significant‟ ” so as to 

warrant recirculation is reviewed only for support by substantial evidence. (Vineyard 

 

3 An appellate contention may be deemed forfeited if it is not presented under an 

appropriate heading showing the nature of the question presented and the point to be 

made. (Placer Ranch Partners v. County of Placer (2001) 91 Cal.App.4th 1336, 1343, 

fn. 9; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, 

fn. 4.)
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Area Citizens, supra, 40 Cal.4th at p. 447; Laurel Heights II, supra, 6 Cal.4th at p. 1135.) 

Substantial evidence means “enough relevant information and reasonable inferences from 

this information that a fair argument can be made to support a conclusion, even though 

other conclusions might also be reached.” (Guidelines, § 15384, subd. (a).) 

Smart Growth bears the burden of proving a double negative, that the County‟s 

decision not to revise and recirculate the final EIR is not supported by substantial 

evidence. (Western Placer Citizens, supra, 144 Cal.App.4th at p. 903; Sierra Club v. 

County of Napa, supra, 121 Cal.App.4th at p. 1497.) That is, Smart Growth must 

demonstrate that there is no substantial evidence to support a determination that the staff 

alternative was not significant new information. (Guidelines, § 15088.5, subd. (a)(3).) 

For the staff alternative to be significant new information, it must be feasible; it must be 

considerably different from other alternatives previously analyzed; it must clearly lessen 

the significant environmental impacts of the proposed project; and the project‟s 

proponents must decline to adopt it. (Ibid.) Smart Growth has the burden to demonstrate 

that there is no substantial evidence to support a negative finding on any of these factors 

in order to establish that the County abused its discretion in failing to recirculate the EIR. 

“As with all substantial evidence challenges, an appellant challenging an EIR for 

insufficient evidence must lay out the evidence favorable to the other side and show why 

it is lacking. Failure to do so is fatal. A reviewing court will not independently review 

the record to make up for appellant‟s failure to carry his burden. [Citation.]” (Defend the 

Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1265-1266.) 

Smart Growth has not met its appellate burden. For example, Smart Growth does 

not demonstrate that there is no substantial evidence to support a determination that the 

staff alternative was not considerably different than all of the others in the EIR, which 

analyzed four alternatives to the project. 

Alternative 1 was the “No Project” alternative required by CEQA. (Guidelines, 

§ 15126.6, subd. (e).) In that alternative the site would be left in its current condition. 
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Alternative 2, the “Woodridge Court Right-In, Right Out” alternative, provided for 

restricted “right-in and right-out” access to the project from Woodridge Court. This 

alternative was selected to determine whether restricted access would avoid traffic 

impacts to State Route 49. 

Alternative 3, the “Business Park Land Use” alternative, would develop the 

project under the current general plan land use designations. This alternative was 

designed to reduce traffic and noise impacts to nearby residences. 

Alternative 4, the “Redesign/Reduced Density” alternative, would develop the site 

with commercial uses similar to those of the proposed project. However, it would 

remove Parcel 3 (a 6,500 square-foot commercial building and associated improvements) 

in order to accommodate a 50-foot buffer between the wetland conservation area, and it 

would relocate the drive-through restaurants and commercial building so as to provide a 

greater buffer between the uses and adjacent residential areas. This alternative was 

designed to reduce biological, noise, visual and traffic impacts. 

Smart Growth argues that the staff alternative “is considerably different” from the 

alternatives considered in the draft EIR, because none of the draft EIR‟s alternatives 

“meet the project‟s stated objectives by providing for the development of a full-service 

shopping alternative that would improve the County‟s jobs/housing balance, while 

simultaneously reducing the Project‟s acknowledged „significant and unavoidable‟ 

cumulative air quality impacts by designating the remainder of the project site as Open 

Space.” (Emphasis omitted.) Smart Growth claims that none of the alternatives 

presented during the County‟s administrative consideration of the project “contemplates 

this potentially feasible way to reduce the project‟s air quality impacts. Rather, every 

action alternative considered in the publicly circulated Draft EIR reserves a substantial 

portion of the project site for future, business park and office uses (which are not among 

the Draft EIR‟s stated Project objectives), which necessarily include these land uses‟ 
15

attendant incremental future contributions to cumulative air quality impacts.” (Emphasis 

and fn. omitted.) 

In other words, the staff alternative allows for more open space. But Smart 

Growth fails to explain, with reasoned analysis supported by citations to the evidence in 

the record, why this specific increase in open space is considerably different. (Nwosu v. 

Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14 [the failure to present argument with 

references to the record and citation to legal authority results in a forfeiture of any 

assertion that could have been raised]; Badie v. Bank of America (1998) 67 Cal.App.4th 

779, 784-785 [when an appellant fails to raise a point, or fails to support a point with 

reasoned argument and citations to authority, it is forfeited].) Moreover, Smart Growth 

does not meet its appellate burden of setting forth all the evidence favorable to the 

County and showing wherein it is lacking. This is fatal to its claim. (Defend the Bay v. 

City of Irvine, supra, 119 Cal.App.4th at pp. 1265-1266.) Although Smart Growth 

attempts to rectify its error in its reply brief, it is too late to do so there because it 

deprives the respondent of the opportunity to respond. (Reichardt v. Hoffman (1997) 52 

Cal.App.4th 754, 764-765; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 

1446, 1453.)

These same flaws undermine Smart Growth‟s attempt to address the other factors 

in Guidelines section 15088.5, subdivision (a)(3). For example, in its opening brief, 

Smart Growth maintains that the staff alternative is feasible, but Smart Growth does not 

refer us to the statutory definition of the term or address the factors set forth in that 

definition by citation to evidence in the record. (See § 21061.1; Guidelines, § 15364.)4 

Smart Growth does not provide any analysis justifying its position that only potential 

 

4 “ „Feasible‟ means capable of being accomplished in a successful manner within a 

reasonable period of time, taking into account economic, environmental, social, and 

technological factors.” (§ 21061.1; Guidelines, § 15364.) 
16

feasibility, as opposed to actual feasibility, is required at this late stage of the CEQA 

process, under circumstances where there is no claim that the draft EIR lacked adequate 

reasonable alternatives, the draft EIR had been circulated for public discussion, and the 

staff alternative was not raised until after the final EIR was submitted for certification. 

With respect to another recirculation factor, Smart Growth simply asserts that the 

staff alternative will “clearly lessen the significant environmental impacts of the 

[proposed] project” (Guidelines, § 15088.5, subd. (a)(3)) by designating four acres as 

open space on the Tintle property, rather than permitting future business park and 

professional use, and by eliminating the fast food restaurants. Smart Growth provides no 

analysis, supported by citations to evidence in the record, explaining how this will clearly 

lessen the project‟s environmental impacts. For example, the reduction in cumulative air 

quality environmental impacts might be insignificant when viewed under the appropriate 

thresholds for Nevada County. Moreover, Smart Growth fails to show that the staff 

alternative clearly lessens the significant environmental impacts of the revised project; 

instead, Smart Growth compares the staff alternative to the project as originally proposed.

We are not required to cull through the more than 11,000-page administrative 

record to see if there is support for Smart Growth‟s position. (Defend the Bay v. City of 

Irvine, supra, 119 Cal.App.4th at pp. 1265-1266.) Under the circumstances, Smart 

Growth has not established its claim that the County abused its discretion in failing to 

prepare and recirculate a revised draft EIR with the staff alternative. 

II

In a related contention, Smart Growth claims the County violated CEQA‟s 

mandatory procedures by failing to make findings regarding the feasibility of the staff 

alternative. Smart Growth believes that once the Planning Commission found the staff 

alternative sufficiently feasible to recommend approval of the alternative to the Board, 

the Board had to either adopt the staff alternative or make findings setting forth the 

reasons why the staff alternative was not feasible. Smart Growth argues that because the 
17

Board did not adopt the staff alternative, it had to make findings regarding the feasibility 

of that alternative. 

Although a lead agency must give reasons for rejecting an alternative as infeasible 

during the scoping process (Guidelines, § 15126.6, subd. (c)),5 the scoping process takes 

place prior to completion of the draft EIR. (Gilroy Citizens for Responsible Planning v. 

City of Gilroy, supra, 140 Cal.App.4th at p. 917, fn. 5; Guidelines, § 15083.) The staff 

alternative was proposed well after completion of the draft EIR; indeed, it was proffered 

after preparation of the final EIR. 

Furthermore, although the lead agency must give reasons for rejecting the 

alternatives discussed in the EIR where the document identifies one or more significant 

environmental effects of the project (§ 21081, subd. (a)(3); Guidelines, § 15091, 

subd. (a)(3)), the staff alternative was not one of the alternatives discussed in the EIR and 

Smart Growth has not established that the County erred by not including it in the EIR. 

Smart Growth does not point to any CEQA statutes or regulations requiring that 

the lead agency make findings regarding why it rejected an alternative proposed after the 

final EIR and not included in the EIR. (South Orange County Wastewater Authority v. 

City of Dana Point (2011) 196 Cal.App.4th 1604, 1617 [“The Legislature has expressly 

 

5 Guidelines section 15126.6, subdivision (c) states: “Selection of a range of reasonable 

alternatives. The range of potential alternatives to the proposed project shall include 

those that could feasibly accomplish most of the basic objectives of the project and could 

avoid or substantially lessen one or more of the significant effects. The EIR should 

briefly describe the rationale for selecting the alternatives to be discussed. The EIR 

should also identify any alternatives that were considered by the lead agency but were 

rejected as infeasible during the scoping process and briefly explain the reasons 

underlying the lead agency's determination. Additional information explaining the choice 

of alternatives may be included in the administrative record. Among the factors that may 

be used to eliminate alternatives from detailed consideration in an EIR are: (i) failure to 

meet most of the basic project objectives, (ii) infeasibility, or (iii) inability to avoid 

significant environmental impacts.”
18

forbidden courts to interpret CEQA or the [CEQA Guidelines] to impose „procedural or 

substantive requirements beyond those explicitly stated‟ in the act or in the guidelines”].) 

Indeed, as we explained in part I, the County was not required to make an express finding 

of infeasibility. It was only required to find that the staff alternative was not significant 

new information, a finding that may be implied from its decision to certify the EIR 

without recirculating it. (Laurel Heights II, supra, 6 Cal.4th at p. 1133; Western Placer 

Citizens, supra, 144 Cal.App.4th at p. 904.) Feasibility was just one of the factors to be 

considered in determining whether the staff alternative qualified as significant new 

information.

Smart Growth contends the County‟s failure to make findings explaining why the 

staff alternative was infeasible “cannot be squared with” Laurel Heights I, supra, 47 

Cal.3d 376, and Goleta II, supra, 52 Cal.3d 553, but those cases are inapposite. 

Laurel Heights I, supra, 47 Cal.3d 376 concerned an EIR‟s inadequate discussion 

of alternative locations for a project in violation of Guidelines section 15126. The 

Regents of the University of California merely included a conclusory statement that any 

alternatives were infeasible without providing supporting analysis. (Id. at. pp. 403-404.) 

The California Supreme Court held that the Regents must include their analytic route so 

that the public can be fully informed, rather than simply expecting the public to trust 

them. (Id. at. pp. 404-405.) But here, adequate alternatives were discussed in the EIR. 

Laurel Heights I has no bearing on the present claim that the County had an obligation 

under CEQA to issue a finding of infeasibility if it chose not to recirculate the EIR with 

the staff alternative.

Goleta II, supra, 52 Cal.3d 553 arose following a first appeal in which the 

County‟s EIR was held to be inadequate because it failed to discuss any alternative 

project sites. (Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 

1167, 1180 (Goleta I).) During the pendency of the appeal in Goleta I, the county began 

preparation of a supplemental EIR which contained a discussion of only one alternative 
19

site. (Goleta II, supra, 52 Cal.3d at p. 560-561.) A citizens group, CGV, belatedly 

requested consideration of a number of additional sites. (Id. at p. 562.) The board of 

supervisors concluded none of the alternative sites were feasible and issued 10 pages of 

findings concerning those alternative sites, but a discussion of the additional alternatives 

was not included in the EIR. (Id. at pp. 562, 567-570.) The Court of Appeal concluded 

that the EIR failed to delineate facts sufficient to explain its rejection of alternative sites 

other than the single alternative discussed in the EIR. (Id. at p. 563.) 

The California Supreme Court reversed the Court of Appeal, holding that it was 

reasonable to explain why the alternative sites were rejected via administrative findings, 

rather than in the EIR, due to the belated manner in which the sites were brought to 

County‟s attention. (Goleta II, supra, 52 Cal.3d at pp. 567-570.) The Supreme Court 

stated: “In general, an EIR should set forth the alternatives that were considered by the 

lead agency and rejected as infeasible during the scoping process, and the reasons 

underlying the agency‟s determination. [Citation.] However, the administrative record 

may be studied „to assess the degree of discussion any particular alternative deserves, 

based on the alternative's feasibility and the stage in the decisionmaking process it is 

brought to the attention of the agency.‟ [Citation.] To be sure, agency consideration of 

otherwise reasonable alternatives in the administrative record cannot replace the CEQA 

mandated discussion of alternatives in the EIR. [Citations.] „But where potential 

alternatives are not discussed in detail in the [EIR] because they are not feasible, the 

evidence of infeasibility need not be found within the [EIR] itself. Rather a court may 

look at the administrative record as a whole to see whether an alternative deserved greater 

attention in the [EIR].‟ [Citations.]” (Id. at p. 569.) 

“Thus, where the circumstances warrant, a reviewing court may consult the 

administrative record to assess the sufficiency of the range of alternatives discussed in an 

EIR. The circumstances justify such consultation here. Unlike the EIR in [Laurel 

Heights I], County‟s environmental review of the [] project discussed a full range of 
20

alternatives, including an in-depth discussion of one off-site alternative. Moreover, CGV 

raised the issue well after the comment period had expired. Thus, the Board's decision to 

delineate its reasons for rejecting the CGV sites as feasible alternatives by means of 

administrative findings, rather than a full-blown supplemental EIR, cannot be deemed in 

this case to have been erroneous.” (Goleta II, supra, 52 Cal.3d at pp. 569-570.)

The procedural history of the case and the Supreme Court‟s analysis demonstrates 

that Goleta II concerned the adequacy of the required reasonable range of alternatives in 

the EIR. It stated an exception to the general rule that the reasons for rejecting project 

alternatives as infeasible must be discussed in the EIR. (Laurel Heights I, supra, 47 

Cal.3d at pp. 404-405; Guideline, § 15126.) Goleta II has no application to the present 

case because Smart Growth has not challenged the adequacy of the EIR on the ground it 

lacks a reasonable range of alternatives. Thus, we must presume the EIR provided the 

Board with enough information to make an informed decision. (Village Laguna, supra, 

134 Cal.App.3d at p. 1029.) Goleta II does not hold that when an EIR includes a 

reasonable range of alternatives, but the County‟s staff suggests an additional alternative 

that is then revised by the project applicant, the County must make an express finding 

that the staff proposal is infeasible before it can approve the revised project. Under the 

circumstances, Smart Growth‟s contention lacks merit.

III

Smart Growth next contends the County violated CEQA by relying on future 

traffic improvements that have not been approved yet in order to declare the revised 

project‟s traffic impacts less than significant. 

If it is feasible to do so, a public agency must mitigate or avoid the significant 

environmental effects of a project that it carries out or approves. (§ 21002.1, subd. (b); 

City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 

359.) “CEQA requires the appropriate public agency „to find, based on substantial 

evidence, that the mitigation measures are “required in, or incorporated into, the project”; 
21

or that the measures are the responsibility of another agency and have been, or can and 

should be, adopted by the other agency; or that mitigation is infeasible and overriding 

considerations outweigh the significant environmental effects. ([Pub. Resources Code,] 

§ 21081; Guidelines, § 15091, subd. (b).) In addition, the agency “shall provide that 

measures to mitigate or avoid significant effects on the environment are fully enforceable 

through permit conditions, agreements, or other measures” ([Pub. Resources Code,] 

§ 21081.6, subd. (b)), and must adopt a monitoring program to ensure that the mitigation 

measures are implemented (§ 21081.6, subd. (a)). The purpose of these requirements is 

to ensure that feasible mitigation measures will actually be implemented as a condition of 

development, and not merely adopted and then neglected or disregarded.‟ [Citation.]” 

(Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 

1018, 1035; italics omitted.)

Smart Growth contends the County relied on uncertain future traffic improvements 

in order to declare the project‟s level of service (LOS) impact on Combie Road to be less 

than significant. Smart Growth states that KKP submitted a revised traffic study 

indicating that the revised project would cause Combie Road, between Higgins Road and 

State Route 49, to drop to LOS F under its existing designation as a “major collector.” 

LOS F is the worst level of traffic flow.6 Smart Growth believes the County assumed 

this impact would be reduced to less than significant levels by (1) a future widening of 

the road, and (2) limiting driveway and side street access along that segment of Combie 

 

6 LOS measures the quality of traffic flow, with a grade of “A” referring to the best 

conditions, and “F” representing the worst conditions. The Nevada County general plan 

presents LOS criteria for roadway segments based on daily traffic volumes, and these 

thresholds make use of classifications that are based on roadway facility type. The higher 

classifications (i.e., arterial roadways) provide higher degrees of mobility and serve more 

traffic; the lower classifications (i.e., local roadways and collectors) provide access. For 

this reason, the County accepts a higher volume of traffic on minor arterials than on 

major collectors. 
22

Road. Smart Growth claims the County violated CEQA because those future changes 

were not incorporated into the project as enforceable mitigation measures and are not 

certain to occur. According to Smart Growth, existing conditions near the project may 

make it infeasible to limit driveway access. As best we can discern, Smart Growth 

believes that unless the aforementioned future changes occur, Combie Road cannot be 

redesignated as a minor arterial, and the traffic impacts will not be less than significant. 

However, a traffic engineer for the County‟s traffic consultant indicated that the 

fact a section of Combie Road near the project has more driveways than other sections of 

the road must not be taken out of context, and does not dictate the designation of the 

road. The traffic engineer stated, “It is impractical to consider separate designations of 

small sections of roadways within larger designated roadway segments. Designating 

roadways in such a piecemeal manner would defeat the purpose of corridor 

designations.” In other words, the existing driveways on one portion of Combie Road 

would not preclude a minor arterial designation for the entire roadway.

As for the assumption that a previously planned and funded expansion of Combie 

Road would occur, the County could make such an assumption without requiring that it 

occur as a mitigation measure. “A public agency can make reasonable assumptions based 

on substantial evidence about future conditions without guaranteeing that those 

assumptions will remain true. [Citations.]” (Environmental Council of Sacramento v. 

City of Sacramento, supra, 142 Cal.App.4th at p. 1036.) Smart Growth may be unhappy 

with the assumption, but it is not a mitigation measure the County had to ensure would 

occur. (Ibid.)

The trial court concluded, and we agree, that the County did not require the 

redesignation of Combie Road as a minor arterial as a mitigation measure. The County 

simply determined that, for purposes of the traffic analysis, Combie Road functioned as a 

minor arterial because it acts as a thoroughfare between Lake of the Pines and State 

Route 49. It did not function as a major collector, which allows unlimited driveway 
23

accesses and therefore results in slower conditions. Indeed, independent of the project, 

the County submitted a change in designation of Combie Road to Caltrans for use on 

federal functional class maps, and the impetus to reclassify the road came out of the 1996 

general plan. Accordingly, the conclusion that the revised project would have a less than 

significant impact on Combie Road between Higgins Road and State Route 49 was based 

on the road‟s current function, rather than its designation, and the LOS threshold for 

minor arterials. This is not a violation of CEQA.

An EIR‟s analysis must be based on the actual environment, and “[t]his 

environmental setting will normally constitute the baseline physical conditions by which 

a lead agency determines whether an impact is significant.” (Guidelines, § 15125, 

subd. (a); see also Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 

190 Cal.App.4th 316, 337 [a lead agency‟s determination of the existing environmental 

setting is reviewed for substantial evidence]; Environmental Planning & Information 

Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354-355 [CEQA “has 

clearly expressed concern with the effects of projects on the actual environment upon 

which the proposal will operate”]; City of Carmel-by-the-Sea v. Board of 

Supervisors (1986) 183 Cal.App.3d 229, 246 [effect of project must be analyzed in 

“relation to real conditions on the ground”].) Because the County addressed impacts on 

Combie Road based on existing conditions, rather than on the label attached to them, 

whether Combie Road functions as a minor arterial is governed by the substantial 

evidence standard. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 

1294-1295 [rejecting the contention that the “fail[ure] to proceed „in the manner required 

by law‟ ” standard applied to an agency‟s characterization of wetlands based on their 

function and value, and applying the substantial evidence standard instead]; Cadiz Land 

Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 104-105 [applying substantial evidence 

standard to agency‟s classification of an earthquake fault as inactive].)
24

Smart Growth fails to establish in its opening brief that there is no substantial 

evidence to support the County‟s determination that Combie Road functions as a minor 

arterial. It also fails to dispute the appropriateness of basing the EIR‟s traffic impact 

determination on roadway function rather than designation. Although the County intends 

to widen Combie Road and the project is fully funded, this fact was simply cited in the 

administrative record as support for the conclusion that Combie Road functions more as a 

minor arterial than a major collector. But because the road functions as a minor arterial, 

the project will have a less than significant impact on the road, which is why it was not 

necessary to condition the project on the road‟s future expansion. (§§ 21002, 21081; 

Guidelines, §§ 15002, subd. (a)(3), 15091, subd. (a)(1).) 

Under the circumstances, Smart Growth‟s claim that the County violated 

mandatory CEQA provisions lacks merit.

DISPOSITION

The judgment is affirmed.

 MAURO , J.

We concur:

 RAYE , P. J.

 ROBIE , J.