1

Filed 1/30/20; Certified for Publication 3/2/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

ENVIRONMENTAL COUNCIL OF 

SACRAMENTO et al.,

Plaintiffs and Appellants,

v.

COUNTY OF SACRAMENTO et al.,

Defendants and Respondents;

CORDOVA HILLS, LLC et al.

Real Parties in Interest and Respondents.

C076888

(Super. Ct. No. 

34201380001424CUWMGDS)

Defendants County of Sacramento and the County Board of Supervisors (the 

County) approved Cordova Hills, a large master planned community comprised of 

residential and commercial uses and including a university (the Project). Plaintiffs 

Environmental Council of Sacramento and the Sierra Club (Environmental Council) filed 

a petition for writ of mandate challenging the Project, which the trial court denied. 
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Environmental Council appeals, contending the Environmental Impact Report (EIR) 

contains a legally inadequate project description, an inadequate environmental impact 

analysis, fails to analyze impacts to land use, and the County failed to adopt feasible 

mitigation measures. At the heart of Environmental Council’s appeal is the contention 

that the university is not likely to be built and since the EIR assumes the buildout of a 

university it is deficient in failing to analyze the Project without a university. We shall 

affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Project

In 2007 real parties in interest Cordova Hills, LLC, Conwy, LLC, Cielo, LLC, and 

Grantline, LLC, collectively Cordova Hills Ownership Group (Landowners), submitted 

an application to the County to develop Cordova Hills. Cordova Hills was a proposed 

master planned community. In 2011 the County adopted a new 2030 general plan. The 

Project was evaluated based on the criteria in the general plan, including an emphasis on 

master planning large special planning areas (SPA’s) instead of piecemeal project 

evaluation in new growth areas.

In order to comply with the general plan planning principles, the Project was

required to include an affordable housing plan, an urban services plan, a fiscal impact 

analysis, a public facilities financing plan, an air quality mitigation plan, a greenhouse 

gas plan, and a development agreement.

The Project is located on approximately 2,669 acres in southeastern Sacramento 

County. Currently the site is used for grazing cattle and is undeveloped.

The Project’s uses consist of residential, office, retail, a university campus, 

schools, parks, and a network of trails. It will include high-density residential sites, lowdensity residential sites, and a large commercial area. In addition, the Project provides 

for the construction of 8,000 residential units for a population of approximately 21,379.
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The proposed university includes a campus population of 4,140, bringing the total 

population of the project to 25,519. The majority of the retail and office space will be 

located in a commercial area and will include restaurants, movie theatres, bookstores, 

home supply stores, and other retailers.

The EIR provides a description of the proposed university: “The SPA reserves 

approximately 224 acres of land for a future college campus. At the time of this writing, 

a specific university or other higher-education institution had not been identified for the 

site. The SPA includes detailed concept plans for the future university/college campus 

center. For the purposes of environmental analysis, the anticipated enrollment is 6,000 

students (4,300 undergraduate and 1,700 graduate) and 2,036 total employees. A total of 

65% of students were assumed to live on the campus (4,040 [sic] students). It was also 

assumed that the university/college campus center will require approximately 1,870,000 

square feet of facilities. Note that the phasing described below is a conceptual plan, and 

that the actual buildout will progress over the long-term planning horizon in response to 

demand and in response to the needs of the specific university which is ultimately located 

here – it cannot be predicted with precision. The specific floor areas, buildings, and uses 

identified in the following phases are conceptual and not intended as specific building 

entitlements. None of the environmental analyses in the main chapters rely on any aspect 

of this phasing plan to assess impacts; impacts are based on full buildout of the entire 

area reserved for the university/college campus center.”

Originally, the development application identified the University of Sacramento as 

the university tenant. In July 2011 the University of Sacramento withdrew from the 

Project. Under the development agreement, if a university is not located at the site within 

30 years, then the land will be transferred to the County. During the 30-year window, the 

property owner may not seek or apply for a change in the land use designation. The 

development agreement requires the property owner to provide the County with annual 

updates on the status of finding a university for the site.
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The development agreement also requires the property owner to establish a 

“University Escrow Account” requiring the payment of $2 million after the issuance of 

1,000 building permits, and an additional $2 million after 1,750 building permits and a 

final $2 million after the issuance of 2,985 building permits. If a university is built, the 

County will release the escrow money to the university for campus-related operations. If 

a university does not locate on the site, the escrow funds will be released to the County 

for the purpose of attracting a university to the location.

The Approval Process

Landowners, the Project proponents, filed an amended project application in 

January 2010, after unsuccessfully filing an earlier application. In June 2010 the County 

published a notice of preparation for a draft EIR of the Project. The following January, 

the County released the draft EIR for public review and comment. After the County 

planning commission held a hearing on the draft EIR, the County released the final EIR 

in November 2012.

Approximately a month later, the County Board of Supervisors held a public 

hearing on the final EIR. The County certified the final EIR and adopted the CEQA 

(California Environmental Quality Act) findings of fact and statement of overriding 

considerations in January 2013.

The County’s approvals under the final EIR included: (1) general plan 

amendments to move the urban policy area to include the Project site, change the land use 

diagram from general agriculture to other uses in the Project area, and amend the general 

plan transportation plan and bikeway master plan; (2) zoning ordinance amendments to 

adopt the Cordova Hills SPA to incorporate the Cordova Hills master plan, including 

design guidelines and development standards for the Project area; (3) a tentative 

subdivision map; (4) an affordable housing plan; (5) a development agreement; (6) 
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adoption of public facilities financing plan for the project; and (7) adoption of the 

Cordova Hills water supply master plan amendment.

Among the findings and statement of overriding considerations approved is a 

finding regarding the proposed university: “The Board finds that the Project’s 223-acre 

university/college campus area provides the opportunity to attract a major employer of 

highly trained and educated workers such as university professors, school administrators, 

researchers and teaching assistants. The Board finds that there is demand for such an 

institution in California, and in the Sacramento region. In making this finding, the Board 

has determined that it is beneficial to have land already designated in a manner 

compatible with the use being sought; the need to go through a lengthy entitlement and 

permit process before construction can begin can be an important deterrent for major 

employers of this kind. Thus, the Project will attract and incentivize a higher-learning 

institution.”

The Subsequent Litigation

In March 2013 Environmental Council filed a petition for writ of mandate. The 

trial court denied the petition, upholding the Board’s certification of the final EIR and 

approval of the Project.

The court found the project description adequate under CEQA and that the EIR 

did not have to address the possibility that the university would not be built. In addition, 

the court held the EIR adequately disclosed and analyzed the Project’s environmental 

impacts associated with air quality, traffic, and climate change. Nor was the County 

required to phase the Project as a mitigation measure and that the record did not support 

phasing the Project. Finally, the court determined Environmental Council failed to 

exhaust administrative remedies as to whether the EIR defers mitigation of climate 

change impacts by improperly treating the design of the Project as a mitigation measure.

This appeal followed.
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DISCUSSION

I

Standard of Review

In enacting CEQA (Pub. Resources Code, § 21000 et seq.), the Legislature 

declared its intention that public agencies responsible for regulations affecting the 

environment give prime consideration to preventing environmental damage when 

carrying out their duties. CEQA is to be interpreted to afford the fullest possible 

protection to the environment within the reasonable scope of the statutory language. 

(Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.) 

The EIR is the heart of CEQA. Its purpose is to give the public and government 

agencies the information about environmental consequences needed to make informed 

decisions, thus protecting both the environment and informed self-government. (In re 

Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162 (Bay-Delta).) 

When an agency prepares an EIR, it provides public officials and the public with 

details about a proposed project’s consequences. The EIR lists the ways to potentially 

minimize any significant environmental effects, and presents alternatives to the project. 

By making this information available at a crucial moment when the merits of a project 

and its alternatives are under discussion, an EIR advances both environmental protection 

and informed self-government. (California Building Industry Assn. v. Bay Area Air 

Quality Management Dist. (2015) 62 Cal.4th 369, 383.) CEQA does not necessarily call 

for disapproval of a project having a significant environmental impact, nor does it require 

the selection of the alternative most protective of the environmental status quo. (Ibid.) 

Instead, when economic, social or other conditions make alternatives and mitigation 

measures infeasible, a project may be approved despite its significant environmental 

effects if the lead agency adopts a statement of overriding considerations and finds the 

benefits of the project outweigh the potential environmental damage. (Ibid.) 
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“ ‘While foreseeing the unforeseeable is not possible, an agency must use its best 

efforts to find out and disclose all that it reasonably can.’ ” (San Joaquin Raptor/Wildlife 

Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 726.) The EIR’s 

sufficiency is reviewed in light of what is reasonably feasible, and we do not look for 

perfection but for adequacy, completeness, and a good faith effort at full disclosure. 

(Bay-Delta, supra, 43 Cal.4th at p. 1175.) 

On review, the court considers whether the public agency committed a prejudicial 

abuse of discretion, either by failing to proceed in a manner required by law or by making 

conclusions unsupported by substantial evidence. (Bay-Delta, supra, 43 Cal.4th at 

p. 1161.) The court adjusts its scrutiny to the nature of the alleged defect, depending on 

whether the claim is predominantly one of improper procedure or a dispute over the facts. 

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

40 Cal.4th 412, 435 (Vineyard).) If the dispute involves facts or conclusion, the court 

upholds the agency’s findings if supported by substantial evidence. (Laurel Heights 

Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393, 

407 (Laurel Heights).)

We review the administrative record for legal error and substantial evidence in a 

CEQA case, as in other mandamus cases, is the same as that of the trial court. We review

the agency’s action, not the trial court’s decision; in that sense our review under CEQA is 

de novo. (Bay-Delta, supra, 43 Cal.4th at p. 1162.) We resolve reasonable doubts in 

favor of the administrative finding and decision. (Laurel Heights, supra, 47 Cal.3d at 

p. 393.)

II

Adequacy of Project Description

Environmental Council faults the EIR for failing to provide an adequate project 

description “because the construction and development of a university is uncertain and 
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unlikely. Substantial evidence indicates a strong likelihood that a university will never be 

built. Thus, the EIR’s environmental analysis, which relies upon a university at full 

buildout, is based upon a falsehood and speculation.”

An EIR is an informational document designed to provide both public agencies 

and the public at large with detailed information about the likely effects of a project on 

the environment; to list the ways in which significant effects might be minimized; and to 

discuss alternatives. At its essence, an adequate project description ensures CEQA’s goal 

of providing information about a project’s impacts is not rendered useless. (Maintain 

Our Desert Environment v. Town of Apple Valley (2004) 124 Cal.App.4th 430, 443.) 

An EIR project description should include reasonably foreseeable future activities 

that are the consequence of project approval. It should address environmental effects of 

future action, if there is credible and substantial evidence that (1) it is a reasonably 

foreseeable consequence of the project, and (2) the future action will be significant in that 

it will likely change the scope and nature of the project and its environmental effects. 

Absent these factors, an EIR need not consider future action. However, any future action 

would have to be discussed in future CEQA review before the future action may be 

approved. (Laurel Heights, supra, 47 Cal.3d at p. 396; Kings County Farm Bureau v. 

City of Hanford (1990) 221 Cal.App.3d 692, 738 (Kings County).) 

Environmental Council argues, as it did before the trial court, that the construction 

of new universities has significantly decreased and universities face mounting financial 

and other pressures, including competition from online education, which make it difficult 

to construct, relocate, or expand facilities. In addition, the record indicates the extreme 

unlikelihood of successfully recruiting a new or existing university. The university 

intended for the project, and another university intended for a permitted Placer County 

site, both withdrew from consideration in the planning processes. Environmental Council 

also notes other sites in the Sacramento region are also seeking universities.
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There is no doubt that attracting a major educational institution would be a 

daunting task. These difficulties were taken into account by the EIR, which imposed 

obligations on both the developer and the county designed to advance that goal. As the 

court found: “However, several conditions in the Development Agreement require the 

Developer to make good faith efforts to attract a university. Moreover, the County is 

required to locate a university for the Project if the Developer does not. [¶] At no time 

during the Development Agency’s 30-year term may the Developer seek to change the

designation of the Project property designated for university use; the Developer must 

report annually to the County on its progress in locating a university; the Developer must 

also deposit payments of $2 million (capped at $6 million) in an escrow account, if the 

university land is not transferred to a higher education institution by the time 1000, 1750, 

and/or 2985 residential building permits are issued; and the Developer must construct 

certain infrastructure to serve the university. Additionally, the Developer must return the 

land to the County to pursue a higher education use if it does not identify a university 

within 30 years. In such an event, the County may use the funds in the escrow account 

only for locating and building a university.”

We agree with the trial court’s assessment. We note that the County, in drafting 

the EIR was required to assume all phases of the Project, including the university, would 

be built. (Vineyard, supra, 40 Cal.4th at p. 431.) 

In addition, the record contains numerous statements by educational figures and 

civic leaders regarding both the need for a university and the desirability of the location 

in question. The Project also sets forth numerous incentives to encourage a university 

tenant, including approximately $87 million of commitments to the university. In 

addition, the approved development agreement precludes the landowners from changing 

the use for the site; requires active pursuit of a university user and to report annually on 

these efforts; requires the landowners to make front-loaded escrow payments that would 
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be provided to the university; and require landowners to construct infrastructure to serve 

the university frontage in the first stage of development.

Environmental Council fails to present credible and substantial evidence to 

support its assertion that the proposed university is an illusory element of the project 

based on speculation and included only to minimize environmental effects. It is possible 

that the developer may fail to locate a university and will therefore return that portion of 

the Project land back to the County in 30 years. At that point, the County may decide to 

use the land for another purpose which would necessitate a subsequent EIR. CEQA does 

not require an EIR to discuss future developments which are unspecified or uncertain. 

“Such an analysis would be based on speculation about future environmental impact.” 

(Kings County, supra, 221 Cal.App.3d at p. 739.) 

We find the Project description legally adequate. The EIR is not required to address the 

speculation that the university will not be built.

III

Adequacy of Environmental Impact Analysis

Environmental Council contends the EIR misrepresents the significance of the 

Project’s environmental impacts to air quality, climate change, and traffic because it 

mistakenly assumes the university will be built. In addition, Environmental Council 

asserts the EIR fails to adequately describe the significance of these impacts by not 

acknowledging that a university may not be constructed for some time.

CEQA requires that an EIR should be prepared with a sufficient degree of analysis 

in order to provide decisionmakers with sufficient information to enable them to make 

decisions which take into account environmental consequences. In assessing an EIR’s 

analysis we look not for perfection, but for adequacy, completeness, and a good faith 

effort at full disclosure. (Citizens to Preserve the Ojai v. County of Ventura (1985) 

176 Cal.App.3d 421, 429.)
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Under CEQA, an EIR must identify and describe a project’s significant 

environmental effects: direct, indirect and long-term. (Pub. Resources Code, § 21100, 

subd. (b)(1); Cal. Code of Regs., tit. 14, § 15126.2, subd. (a).)1 Significant effects should 

be discussed in proportion to their severity and probability of occurrence. (Guidelines, 

§ 15143.) An EIR must identify and describe any feasible mitigation measures that can 

be implemented to reduce or avoid each potentially significant environmental impact. 

(Pub. Resources Code, § 21100, subd. (b)(3); Guidelines, § 15126.4, subd. (a)(1).) The 

adequacy of an EIR is determined in terms of what is reasonably feasible, in light of 

factors such as the magnitude of the project at issue, the severity of its likely 

environmental impacts, and the geographic scope of the project. (Guidelines, § 15204, 

subd. (a).)

Environmental Council renews its claim that the EIR failed to adequately disclose 

the Project’s impacts without the university. However, Environmental Council concedes 

that at the time the EIR was approved, the management district proposed additional 

mitigation measures to reach a 35 percent reduction in emissions and the County 

subsequently adopted changes to mitigation measure AQ-2 in accepting the management 

district’s proposed changes.

Previously we found the EIR was not required to describe the Project in a way that 

contemplated the university would not be built. Nor do we find the EIR’s analysis of air 

quality, climate change, and traffic impacts is erroneous because it did not consider the 

possibility the university would not be built, or might not be built for some time. 

1 The regulations implementing CEQA are codified at California Code of Regulations, 

title 14, section 15000 et seq., and are referred to as the State CEQA Guidelines 

(hereafter, Guidelines).
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The EIR found that the specific impacts cited by Environmental Council would be 

significant and unavoidable. The County adopted findings of fact and a statement of 

overriding considerations recognizing these impacts, but found the other factors 

outweighed the impacts and supported the Project approval. We consider Environmental 

Council’s challenges to the impacts to air quality, climate change, and traffic in turn.

Air Quality

Environmental Council argues the EIR misrepresents oxides of nitrogen (NOX) 

and reactive organic gas (ROG) emissions because if the university is not built they 

would only be mitigated by 20 percent rather than 35 percent. NOX and ROG are types of 

ozone precursors and are identified by the Sacramento Metropolitan Air Quality 

Management District (District) as “criteria pollutants.”

The EIR finds the Project will cause significant and unavoidable impacts to air 

quality by increasing NOX and ROG emissions beyond District’s threshold of 

significance of 65 pounds per day. The Project would increase NOX and ROG emissions 

by 415.22 pounds per day and 857.40 pounds per day respectively. During the review 

process, the District, County, and the landowners developed an air quality management 

plan (Management Plan) to reduce these emissions by 35 percent. Even with this 

reduction, the EIR concludes the increases are still significant and unavoidable.

County added mitigation measure AQ-2 to address air quality concerns. In the 

final EIR, AQ-2 requires that the Project comply with the Management Plan and that any 

amendments to the Cordova Hills SPA shall not increase ozone precursor emissions 

beyond the 35 percent reduction unless the County approves a change to the Management 

Plan. 

AQ-2 states: “Comply with the provisions of the Air Quality Management Plan 

dated June 1, 2011, and incorporate the requirements of this plan into the Cordova Hills 

Special Planning Area conditions. Also the following text shall be added to the Cordova 

Hills SPA: ‘All amendments to the Cordova Hills SPA with the potential to result in a 
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change in ozone precursor emissions shall include an analysis which quantifies, to the 

extent practicable, the effect of the proposed SPA amendment on ozone precursor 

emissions. The amendment shall not increase total ozone precursor emissions above 

what was considered in the AQMP for the entire Cordova Hills project and shall achieve 

the original 35% reduction in total overall project emissions. If the amendment would 

require a change in the AQMP to meet that requirement, then the proponent of the SPA 

amendment shall consult with [District] on the revised analysis and shall prepare a 

revised AQMP for approval by the County, in consultation with [District].”

Therefore, if Project changes require alterations to the Cordova Hills SPA, for 

example if a university is not built, the changes cannot increase NOX and ROG emissions 

beyond that 35 percent reduction absent County approval. AQ-2 undercuts 

Environmental Council’s contention that EIR fails to adequately address air quality. 

Recirculation for Further Review

In a related claim, Environmental Council contends the County was required to 

recirculate the EIR to address the revisions to mitigation measure AQ-2, based on the

District and County’s position that the AQ-2 would mitigate NOX and ROG emissions, 

even if the university were not built. According to Environmental Council, the EIR fails 

to address this and instead the County improperly modified the mitigation measure in 

approving the final EIR.

CEQA requires a lead agency to recirculate an EIR when significant new 

information is added to the EIR after the draft EIR has been released to the public for 

review and prior to certification. (Pub. Resources Code, § 21092.1.) Significant 

information includes a “substantial increase in the severity of an environmental impact” 

that would result “unless mitigation measures are adopted that reduce the impact to a 

level of insignificance.” (Guidelines, § 15088.5; Laurel Heights Improvement Assn. v. 

Regents of University of California (1993) 6 Cal.4th 1112, 1130.) Recirculation is 
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intended to be the exception rather than the rule. (Laurel Heights Improvement Assn., at 

p. 1132.) 

Environmental Council argues the development of the Project without a university 

will result in air quality impacts that will be more significant than those discussed in the 

EIR and these air quality impacts are significant and unavoidable. According to 

Environmental Council, the Project’s NOx and ROG emissions will be reduced by only 

20 percent as opposed to 35 percent if a university is not built. Therefore, this difference 

in mitigation reduction is a substantial increase in the severity of the air emissions 

impacts requiring recirculation of the EIR.

The County asserts Environmental Council failed to exhaust its administrative 

remedies by failing to raise the issue during the administrative process. A party cannot 

maintain an action alleging that the EIR does not comply with CEQA unless the grounds 

for noncompliance were presented to the public agency orally or in writing during the 

public comment period or prior to the close of the public hearing on the project before the 

issuance of the notice of determination. Any objection must be sufficiently specific so 

that the agency has the opportunity to evaluate and respond. The party asserting the issue 

bears the burden of showing the issue was first raised at the administrative level. (Tracy 

First v. City of Tracy (2009) 177 Cal.App.4th 912, 926 (Tracy).) 

Environmental Council asserts that a member of the public alerted the County in 

October 2012 of the need for recirculation because the EIR did not provide an adequate 

analysis of environmental impacts because of the uncertainty of the university being 

built. We will accept the assertion for purposes of argument and consider Environmental 

Council’s recirculation contention. 

According to Environmental Council, the air quality impacts are significant and 

unavoidable because the Project’s NOX and ROG emissions will be reduced by only 20 

percent as opposed to 35 percent if a university is not constructed. This difference in 

mitigation reduction is a substantial increase in air emissions requiring recirculation.
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Environmental Council’s argument overlooks the fact that mitigation measure 

AQ-2 requires a 35 percent reduction of NOX and ROG emissions if the SPA is amended, 

unless the County otherwise approves. We agree with the trial court’s observation that 

“the impacts to NOX and ROG emissions vastly exceed the thresholds of significance, 

regardless of whether they are mitigated by 20% or 35%. Thus even accepting 

Petitioners’ argument as true, it is debatable whether a 15% reduction in mitigation is a 

‘substantial increase’ in the severity of these particular environmental impacts. Finally, 

the revisions to mitigation measures AQ-2 and CC-1 do not increase environmental 

impacts, much less substantially increase them.” The difference in reduction of 

mitigation is not significant new information requiring recirculation.

Climate Change

Environmental Council contends that by assuming the university will be 

constructed, the EIR fails to adequately address climate change impacts, echoing their 

arguments against the EIR’s analysis of air quality. Environmental Council concedes that 

mitigation measure CC-1 was revised to ensure that any future Project changes would not 

increase greenhouse gas emissions.

As revised, CC-1 states: “The following text shall be added to the Cordova Hills 

SPA: All amendments to the SPA with the potential to change SPA-wide GHG 

emissions shall include an analysis which quantifies, to the extent practicable, the effect 

of the Amendment on SPA-wide greenhouse gas emissions. The Amendment shall not 

increase SPA-wide greenhouse gas emissions above an average 5.80 metric tons per 

capita (including emissions from building energy usage and vehicles.) If the SPA 

amendment would require a change in the approved GHG Reduction Plan in order 

to meet the 5.80 MT CO2e threshold, then the proponent of the SPA amendment 

shall consult with the Sacramento County Environmental Coordinator on the 

revised analysis and shall prepare a revised GHG Reduction Plan for approval by 

the County who will coordinate with [the district].” (Revisions in bold.) 
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Environmental Council cites table CC-15, which states that the combined land 

uses in the Project will emit 5.80 metric tons of greenhouse gas per capita. They argue 

that the remaining portions of the EIR’s climate change analysis indicate that if the 

university is not built, the Project will increase the per capita greenhouse gas emissions. 

Therefore, the EIR does not adequately inform the public or decision makers about the 

environmental impact.

However, mitigation measure CC-1 prohibits amendments to the SPA from 

increasing greenhouse gas emissions above the 5.80 metric ton per capita amount. If the 

SPA amendment requires the greenhouse reduction plan to be changed to meet the 5.80 

metric ton amount, the County must approve a revised greenhouse reduction plan. 

Mitigation measure CC-1 requires that a revised use of the land satisfy the 5.80 metric 

ton threshold and that the County must approve a revised greenhouse gas reduction plan 

to meet this threshold. The EIR adequately discussed greenhouse gas impacts.

Traffic

Environmental Council also faults the EIR’s traffic analysis as being inadequate 

because it is based on the full buildout of the proposed university. Without the university 

component, Environmental Council argues, the transportation analysis misstates and 

underestimates the Project’s impact because it assumes reductions based on a university 

which may never occur.

According to Environmental Council, the EIR relies on unrealistically high nonautomobile mode share, because 43 percent of the total university trips within the 

university area will use nonautomotive modes and only 12 percent of the trips in the 

Project area will use nonautomotive modes. Environmental Council also contends the 

EIR relies upon an improper trip internalization reduction based on the assumption the 

university will be built.

Environmental Council raised these same arguments in their comments on the 

EIR. The final EIR responded to these comments and provided evidence supporting the 
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County’s determination of the transportation impacts. The final EIR noted that “as a 

proportion of overall trips, the large non-automotive share for the university has a very 

small impact on overall mode-share.” In addition, the Environmental Council’s comment 

assumes that a major portion of trip reductions occur because of the university, but those 

reductions “were based on factors such as the proposed transit system, Neighborhood 

Electric Vehicle system, pedestrian and bicycle trails, and proximity to uses.” They also 

overlooked that fact that removing the university could result in the reduction of 9,000 

daily trips, and therefore there was no basis for the assertion that “removal of the 

university/college campus center is certain to be a ‘worst-case’ traffic scenario.” Again, 

Environmental Council has not met its burden of showing the EIR underestimates traffic 

impacts. 

IV

Consistency with Sacramento Area Council of Government’s Metropolitan 

Transportation Plans/Sustainable Communities Strategy

Environmental Council also challenges the EIR for failing to address whether it 

was consistent with the Sacramento Area Council of Government’s (SACOG) 

metropolitan transportation plans/sustainable communities strategy (MTP/SCS). 

According to Environmental Council, inclusion of the Project in future MTP/SCS would 

require changes to the land use pattern and transportation system from the current 

MTP/SCS in order to reduce emissions elsewhere in the region to make up for the 

Project’s higher emissions. Senate Bill No. 375 (2007-2008 Reg. Sess.) requires 

metropolitan planning organizations in California to reduce per capita vehicle miles 

traveled (VMT) and related greenhouse gasses through a coordinated land use and 

transportation plan called the sustainable communities strategy (SCS). (Gov. Code, 

§§ 65080.) 
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County objects to this contention on procedural and substantive grounds. 

Environmental Council failed to exhaust their administrative remedies by not presenting 

this argument to the County Board of Supervisors in the administrative process. 

Moreover, County points out, nothing in Senate Bill No. 375 requires a project be 

evaluated under CEQA for consistency with an SCS.

We agree. In failing to raise the issue during the administrative process, 

Environmental Council has waived the issue. (Sierra Club v. California Coastal Com. 

(2005) 35 Cal.4th 839, 864.) Nor does Environmental Council cite any evidence that a 

project must be evaluated under CEQA for consistency with an SCS. Environmental 

Council does not provide any response to these challenges in their reply brief.

V

Failure to Adopt Feasible Mitigation Measures

Finally, Environmental Council contends the record demonstrates a mitigation 

measure requiring phasing of project development in conjunction with a university would 

assist in reducing the Project’s environmental impacts. Therefore, the County violated 

CEQA by failing to adopt feasible mitigation measures to minimize environmental 

impact.

CEQA requires that an EIR propose and describe mitigation measures to minimize 

significant environmental effects. (Pub. Resources Code, §§ 21002.1, subd. (a); 21100, 

subd. (b)(3).) An agency must adopt feasible mitigation measures when approving a 

project to reduce or avoid significant environmental effects. (Pub. Resources Code, 

§§ 21002, 21081, subd. (a).)

In essence, Environmental Council argues that phasing the project would provide 

assurance that a university would be constructed. The trial court interpreted phasing “to 

mean not building all or part of the Project until a university has been located.” 

According to Environmental Council, as a result of County’s failure to adopt phasing “the 
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entire non-university can be fully constructed and developed without any efforts to attract 

or construct a university.” Environmental Council repeats its arguments that greenhouse 

gas emissions, VMT, and ozone precursors are significantly less with a university and 

greater if the university is not built.

County addressed mitigation measures in the findings and statement of overriding 

considerations: “Any of the mitigation measures that were suggested in the [draft EIR] 

and [final EIR] but not incorporated into the Project due to their infeasibility are 

infeasible in part because such measures would impose limitations and restrictions on the 

Project so as to prohibit the attainment of economic, social, and other benefits of the 

Project which this Board finds outweigh the unmitigated impacts of the Project.”

Although Environmental Council asserts that phasing of the Project is feasible, 

they fail to provide any evidence in the record to support this conclusion. It is not the 

court’s duty to independently review the administrative record to find relevant facts to 

support Environmental Council’s claim of feasibility. Therefore Environmental Council 

forfeited the argument that phasing was a feasible mitigation measure, and that County’s 

decision not to phase the Project was unsupported by substantial evidence. (Tracy, supra, 

177 Cal.App.4th at pp. 934-935; Environmental Council of Sacramento v. City of 

Sacramento (2006) 142 Cal.App.4th 1018, 1028-1029.) 
20

DISPOSITION

The judgment is affirmed. The respondents shall recover costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(1) & (2).)

 /s/

RAYE, P. J.

We concur:

 /s/

BLEASE, J.

 /s/

ROBIE, J.
21

Filed 3/2/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

ENVIRONMENTAL COUNCIL OF 

SACRAMENTO et al.,

Plaintiffs and Appellants,

v.

COUNTY OF SACRAMENTO et al.,

Defendants and Respondents;

CORDOVA HILLS, LLC et al.

Real Parties in Interest and Respondents.

C076888

(Super. Ct. No. 

34201380001424CUWMGDS)

ORDER CERTIFYING 

OPINION FOR PUBLICATION

[NO CHANGE IN 

JUDGMENT]

APPEAL from a judgment of the Superior Court of Sacramento County, 

Shelleyanne W.L. Chang, Judge. Affirmed.

Law Offices of Donald B. Mooney and Donald B. Mooney for Plaintiffs and 

Appellants.

John F. Whisenhunt, County Counsel and Krista C. Whitman, Assistant County 

Counsel, for Defendants and Respondents.

Law Offices of Gregory D. Thatch, Gregory D. Thatch and Larry C. Larsen for 

Real Parties in Interest and Respondents.
22

THE COURT:

The opinion in the above-entitled matter filed January 30, 2020, was not certified 

for publication in the Official Reports. For good cause it appears now that the opinion 

should be published in the Official Reports and it is so ordered.

BY THE COURT:

 /s/

RAYE, P. J.

 /s/

BLEASE, J.

 /s/

ROBIE, J.