The opinion
Filed 6/26/26 Sierra Club v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SIERRA CLUB, D085664
Petitioner and Appellant, (Super. Ct. No. 37-2018-
00014081-CU-TT-CTL)
v.
COUNTY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
James Mangione, Judge. Affirmed.
Chatten-Brown Law Group, Josh Chatten-Brown, Kathryn Pettit and
Isabella Coye for Petitioner and Appellant.
David J. Smith, Acting County Counsel and Joshua Heinlein, Chief
Deputy County Counsel, for Defendant and Respondent.
This is the fourth appeal in 15 years of litigation over the County of
San Diego’s (County) approval of a climate action plan under the California
Environmental Quality Act (CEQA). (Pub. Res. Code, § 21000 et seq.) In the
third appeal, we affirmed portions of a writ of mandate directing the County
to remedy a number of identified CEQA violations, including a 2018
supplemental environmental impact report (SEIR) that we found to be
deficient because it failed to analyze a “smart growth alternative” to reduce
vehicle miles traveled. (Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467, 562 (Golden Door II); see id. at pp. 545–550.)1
After further proceedings on remand and the preparation of a new SEIR
analyzing smart growth alternatives, the County approved a new climate
action plan (CAP) in September 2024 and then filed its final return to the
writ of mandate. Over Sierra Club’s written opposition, the trial court issued
an order discharging the writ.
Sierra Club appeals from the discharge of the writ. Sierra Club
contends that under Save the Capitol, Save the Trees v. Department of
General Services (2024) 101 Cal.App.5th 1237 (Save the Capitol), the trial
court before discharging the writ was required to find that (1) the County had
remedied the deficiencies this court identified in Golden Door II; and (2) the
County had complied with CEQA. Sierra Club further contends that the
County violated CEQA when it adopted the new CAP in 2024 by
(1) misleading the public and “[d]odg[ing]” legal accountability in its
“ ‘[s]election’ ” of a smart growth alternative; (2) adopting internally
inconsistent feasibility findings regarding the smart growth alternative; and
(3) failing to adopt all feasible mitigation measures and alternatives.
(Boldface omitted.)
1 “Smart growth means [a] ‘compact, efficient, and environmentally
sensitive pattern of development that focuses future growth away from rural
areas and closer to existing and planned job centers and public facilities,
while preserving open space and making more efficient use of existing urban
infrastructure.’ ” (Golden Door II, supra, 50 Cal.App.5th at p. 534, fn. 40.)
2
We conclude that Sierra Club forfeited any claim that the County did
not remedy the deficiencies we identified in Golden Door II by failing to make
any such argument in its written opposition to the proposed discharge of the
writ of mandate. We further conclude that the alleged CEQA violations it
raised in its opposition and now asserts on appeal are new CEQA issues that
were not properly raised by way of opposition to the County’s writ return.
(Save the Capitol, supra, 101 Cal.App.5th at pp. 1249–1250.) We therefore
affirm the order discharging the writ.
FACTUAL AND PROCEDURAL BACKGROUND
This case has a lengthy record and litigation history spanning more
than a decade with three prior opinions from this court.2 The procedural
history predating the events described here is contained in the prior opinions.
We summarize only the facts and history relevant to an understanding of
the issues in this appeal.
In Golden Door II,3 we found, among other things, that the 2018 SEIR
violated CEQA because it failed to analyze a smart growth alternative aimed
at reducing vehicle miles traveled. (Golden Door II, supra, 50 Cal.App.5th at
2 Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152;
Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th
892; and Golden Door II, supra, 50 Cal.App.5th 467.
3 Golden Door II contains a comprehensive history and explanation of the
County’s efforts to meet state greenhouse gas (GHG) targets and the
California legislation creating those targets. (Golden Door II, supra, 50
Cal.App.5th at pp. 486‒496.) The County’s 2011 General Plan Update is a
“comprehensive, long-term plan for developing unincorporated areas of the
County” and it “[c]alls for reducing GHG emissions to meet state GHG
targets, and requires preparation of a [CAP] to achieve this reduction.”
(Golden Door II, at p. 486.)
3
pp. 545–550, 562.) Based on this and other identified CEQA violations, we
remanded the matter to the trial court to issue a new writ of mandate,
injunction, and judgment and conduct further proceedings consistent with
our opinion.4 (Golden Door II, at pp. 564–565.) Accordingly, the superior
court issued an amended peremptory writ of mandate ordering the County to
(1) set aside the 2018 CAP and SEIR and related approvals, (2) submit an
estimated schedule for preparing a new CAP, and (3) file supplemental
returns updating the schedule every 45 days all while the superior court
retained jurisdiction over the proceedings until it determined that the County
had adequately complied with CEQA and all other applicable laws.
On November 13, 2020, the County filed its initial return to the
peremptory writ certifying it had rescinded the 2018 CAP and related
approvals as ordered. Over the next four years, the County met with Sierra
Club and other organizations approximately 30 times to discuss its
preparation of the new CAP and SEIR and regularly filed updated
supplemental writ returns with the trial court.
On September 4, 2024, the County published its agenda and meeting
materials for the September 11, 2024 San Diego County Board of Supervisors
(the Board) meeting. The meeting materials included a letter from County
4 The other violations we identified in Golden Door II were that the 2018
SEIR violated CEQA because its (1) greenhouse gas mitigation measure (M-
GHG-1) contained unenforceable performance standards and improperly
deferred and delegated mitigation, (2) discussion of cumulative impacts
ignored foreseeable impacts from probable future projects, and (3) finding of
consistency with the regional transportation plan was not supported by
substantial evidence. (Golden Door II, supra, 50 Cal.App.5th at pp. 482–483.)
Additionally, we held that the County abused its discretion in approving the
CAP. (Ibid.) Sierra Club raises no issue on appeal regarding these other
CEQA violations and does not contend the County failed to remedy them.
4
staff to the Board, a CAP update action sheet summarizing the options the
Board had regarding the CAP and various alternatives, and the proposed
Findings and Statement of Overriding Considerations (the proposed
Findings).
In the letter, the County asked the Board to adopt the “CAP Update”
explaining it fulfilled mitigation requirements set by the County’s 2011
General Plan to reduce GHG emissions and met the terms of Golden Door II.
The letter further explained the CAP Update included an updated 2024 SEIR
which “evaluate[d] alternatives to the CAP” and that staff provided “an
evaluation of smart growth alternatives.” The letter also informed the Board
that it was “not required to select any of these smart growth alternatives as
part of today’s request, but [could] direct staff to pursue and further evaluate
one or multiple of these alternatives as part of the Board action today or in
the future.” The County recommended the Board certify the CAP Update and
2024 SEIR. It also explained that if the Board was interested in pursuing
any of the smart growth alternatives it would require further Board action.
The 2024 SEIR, in relevant part, discusses various smart growth
alternatives selected for analysis, including the Fire Safe and Vehicle Miles
Travelled Efficient Alternative (the VMT Alternative), the Village Support
Areas Alternative, and the Sustainable Communities Strategy Alternative.
The VMT Alternative was developed through stakeholder outreach to address
effects of growth under the adopted General Plan. The VMT Alternative
would focus future growth away from rural areas and closer to existing and
planned job centers and public facilities with the goal of addressing the
effects of development and promoting a pattern of development that further
reduces VMT and resultant GHG emissions. The 2024 SEIR stated that if
implemented, “the [VMT Alternative] would result in a[n] [overall] 0.53
5
percent reduction in unincorporated county VMT for 2035 and a 0.41 percent
reduction in unincorporated county VMT for 2050.” Therefore, according to
the 2024 SEIR, although this alternative would reduce VMT from new
development, the magnitude of VMT or GHG emissions reductions in the
unincorporated county would be much smaller when all VMT in the future is
considered.
The Village Support Areas Alternative (Village Alternative) was built
on a Villages concept established in the adopted General Plan. The 2024
SEIR’s analysis of this alternative focused on VMT and GHG impacts. “To
spur redevelopment in the Villages and create a synergy for smart growth,
this alternative would establish 0.5-mile buffers around the established
Villages, referred to as Village Support Areas, wherein housing development
and services to support development in the Villages would be encouraged.”
“Overall, the [Village Alternative] would result in a 0.08 percent reduction in
unincorporated county VMT for 2035 and a 0.04 percent reduction in
unincorporated county VMT for 2050.” The 2024 SEIR concluded that “this
alternative is not expected to meaningfully reduce VMT or associated GHG
emissions in the unincorporated county.”
The Sustainable Communities Strategy Alternative (Sustainable
Alternative) focused growth in the portions of the Mobility Hubs in the
unincorporated county. Mobility Hubs are envisioned as places of activity
where capital transportation investment will support future housing and
jobs, and encompass areas that are both within incorporated city boundaries
and within the unincorporated county. Overall, this alternative would result
in a 7.71 percent reduction in VMT compared to the adopted General Plan in
2035 and a 9.48 percent reduction in VMT compared to the adopted General
Plan in 2050. This alternative was assumed to substantially reduce GHG
6
emissions associated with VMT in the unincorporated county compared to the
General Plan. However, the total VMT reductions were based on the
Regional Plan’s premise of a distribution of growth within Mobility Hubs that
encompass areas outside of the unincorporated county. The 2024 SEIR
concluded that “the actual VMT reductions achieved under this alternative
may be less than modeled for the purposes of this analysis.”
The proposed Findings certified that the 2024 SEIR was completed in
compliance with CEQA and was presented to the Board for review and
consideration before approval. With respect to the alternatives in the SEIR,
the proposed Findings explained they were formulated, in part, to satisfy the
directives in Golden Door II. The proposed Findings included a summary of
each alternative analyzed in the 2024 SEIR and the rationale as to why the
Board determined the Project was preferred over each alternative. The
Board rejected the No Project Alternative as infeasible because it failed to
meet any of the project objectives and would result in greater GHG emissions
and VMT impacts when compared to the Project. As to the smart growth
alternatives, the Board concluded that, “for the time being at least, the [VMT
Alternative, Village Alternative, Sustainable Communities Alternative, and
Policy Edits Alternative] cannot be accomplished within a reasonable period
of time and for that reason [are] infeasible at present.” The proposed
Findings explained that “implementation of the smart growth alternatives is
intended to occur in addition to, rather than in lieu of, the measures and
actions in the CAP Update.” “If adopted in addition to the proposed Project,
implementation of one of the smart growth alternatives, or some combination
of them, would require additional actions by the Board, such as direction of
new technical studies, program development, and extensive stakeholder and
community engagement.” Relatedly, the proposed Findings explained that
7
the Board directed “pursuit of other land use programs that are intended to
reduce VMT in the unincorporated county.” Because these efforts “will serve
the same purpose as the smart growth alternatives” the Board rejected the
alternatives in the SEIR “for the time being because they cannot be
implemented within a reasonable period of time.”
On September 9, 2024, the executive director of Endangered Habitats
League emailed the deputy director of the County to ask for clarification on
the proposed finding of infeasibility for the VMT Alternative. In response,
County staff explained that “CEQA requires a lead agency to make various
[f]indings when certifying an EIR [(Environmental Impact Report)].
Rejection of the alternatives is one component of those [f]indings, which are
necessary whenever a proposed project is adopted.” The County went on to
explain that if the Board directed a smart growth alternative, the County
recommended that it be integrated into ongoing efforts like the Sustainable
Land Use Framework.
On September 11, 2024, the Board held a meeting in which the County
recommended it approve the Project which included adoption of the CAP
Update and certification of the 2024 SEIR. The County staff explained the
Board could “choose to select any smart growth alternative which would
require subsequent planning and technical analysis, stakeholder
engagement, and additional CEQA analysis before they are adopted at a
future hearing.” Responding to a Board member question, County counsel
confirmed the Board was not required to adopt any of the smart growth
alternatives and explained that the proposed motion would adopt the CAP
and SEIR and “include the staff’s recommendation … to pursue the [VMT
Alternative] with the County’s ongoing land use planning efforts… Meaning
8
it would not have an impact on the CAP. It would be a parallel working
plan.”
After hearing from the public and Board members, the Board took the
following actions: (1) adopted the proposed Findings and certified the 2024
SEIR; (2) adopted the Guidelines for Determining Significance for Climate
Change and Greenhouse Gas Threshold of Significance; (3) adopted the final
CAP Update; (4) adopted the Climate Action Plan Consistency Review
Checklist; (5) adopted resolution No. 24-116 updating the 2011 General Plan
Update Program EIR Mitigation Measure; (6) adopted resolution No. 24-117
adopting the General Plan Amendment; (7) adopted resolution No. 24-118 to
apply for and accept grant funding to support the CAP; (8) adopted resolution
No. 24-119 adopting the GHG threshold of significance; and (9) authorized
the director of Planning & Development Services to apply for and accept
grant funds and negotiate contracts to support implementation of the CAP.
The Board additionally selected options: (A1) the VMT Alternative; (2A)
integrate smart growth alternative concepts to existing ongoing efforts; and
(2C) options for evaluation of implementation of geographic-based smart
growth alternatives. Lastly, the Board directed the chief administrative
officer to convene the environmental justice working group to advise on the
implementation of the CAP.
Sierra Club believed the VMT Alternative was adopted at the
September 11, 2024 Board meeting.
One month later, the County provided Sierra Club with a copy of the
County’s final adopted CEQA Findings and Statements of Overriding
Considerations. The final adopted Findings were the same as the proposed
Findings published on September 4 and included the same infeasibility
findings as to the alternatives.
9
On October 18, 2024 the County filed its final return to the preemptory
writ of mandate. The County stated it had adopted a new CAP, certified the
CAP’s SEIR, and took other associated actions to support and implement the
CAP. The County also asserted that any challenges to the adoption of the
new CAP and SEIR were barred by the statute of limitations.
Sierra Club filed an opposition to the County’s request for discharge of
the writ along with a supporting declaration and exhibits. Sierra Club asked
the court to set a hearing on the matter but did not request further briefing
or an opportunity to submit additional evidence. Sierra Club opposed the
discharge of the writ due to (1) the apparent contradiction between the
County’s findings declaring the VMT Alternative infeasible and the Board’s
purported adoption of the VMT Alternative; and (2) the County’s proposed
timeline for implementing the VMT Alternative. In its opposition, Sierra
Club did not cite Golden Door II or Save the Capitol, did not assert that the
County had failed to remedy any of the specific CEQA violations identified in
Golden Door II, and did not argue that the 2024 SEIR’s analysis of smart
growth alternatives was deficient.
In its response to Sierra Club’s opposition, the County claimed Sierra
Club’s challenges were barred by the statute of limitations and failure to
exhaust administrative remedies. The County further stated that the Board
did not approve or adopt the VMT Alternative, but directed staff to conduct
further analysis to potentially implement the VMT Alternative in the future.
On November 13, 2024, the trial court discharged the writ. The trial
court did not hold a hearing or provide any explanation or analysis for its
action. Sierra Club timely appealed.5
5 The parties’ unopposed requests to take judicial notice are granted.
10
DISCUSSION
I
On appeal, Sierra Club has filed a motion requesting that we correct
the notice of appeal to add additional parties. The notice of appeal identifies
Sierra Club as the appellant while the underlying dispute included the
following additional petitioners: Center for Biological Diversity, Cleveland
National Forest Foundation, Endangered Habitats League, Environmental
Center of San Diego, and Preserve Wild Santee. Sierra Club asks us to add
the missing parties as additional appellants under Code of Civil Procedure
section 473, which authorizes the court to correct clerical mistakes and
inadvertent omissions.
Sierra Club argues that notices of appeal are to be liberally construed
to protect the right of appeal and that the California Rules of Court permit
the court to correct the record at any time. (Cal. Rules of Court, rule
8.155(c).) Citing K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th
875 (K.J.), Sierra Club explains that if the record is clear that an omitted
appellant intended to participate and the respondent is not prejudiced by the
inclusion later, the appellate court should construe the notice of appeal to
include the omitted party. In its opposition, the County argues we lack
jurisdiction to consider an appeal by unnamed petitioners and that Sierra
Club’s counsel made false statements to this court by claiming the omission
was inadvertent.
A notice of appeal must be liberally construed. (Cal. Rules of Court,
rule 8.100(a)(2).) We must therefore evaluate whether the notice of appeal
serves its basic function “to provide notice of who is seeking review of what
order or judgment.” (K.J., supra, 8 Cal.5th at p. 883.) In K.J., the notice of
appeal excluded the name of the sanctioned attorney, though it referenced
11
the sanctions order. (Id. at p. 885.) The court concluded that “a reviewing
court must construe a notice of appeal from a sanctions order to include an
omitted attorney when it is reasonably clear that the attorney intended to
join in the appeal, and respondent was not misled or prejudiced by the
omission.” (Ibid.) The court found it was clear from the record that the
omitted attorney intended to participate in the appeal because (1) the notice
of appeal designated only the sanctions order and no other order or judgment;
(2) the sanctions order only imposed sanctions against the attorney and had
no effect on the rights of the client; and (3) the attorney had engaged in
substantial litigation regarding the sanctions in the trial court. (Id. at
pp. 878, 889–890.)
Here, by contrast, Sierra Club has not pointed to anything in the record
making it reasonably clear that the other omitted parties intended to appeal.
In contrast to K.J., they were not the only parties aggrieved by the appealed
order. Notably, the other parties were not listed on the notice of appeal, the
designation of record, or the Civil Case Information Sheet (CCIS), which
requires that all parties be listed individually. (See CCIS p. 3 [“list all the
parties and all their attorneys of record who will participate in the appeal”])
We see nothing in the record suggesting the other parties intended to appeal
even though only Sierra Club was listed as an appellant on all the critical
documents initiating the appeal. We therefore deny the motion to correct the
notice of appeal.
II
Sierra Club has also filed a motion asking our court to take new
evidence under Code of Civil Procedure section 909. Specifically, Sierra Club
requests that we consider a December 4, 2024 memorandum and supporting
declaration regarding a conversation it had on November 19, 2024 with the
12
Chief of Intergovernmental Affairs for the County’s First Supervisorial
District. The conversation memorialized in the memorandum, Sierra Club
argues, shows that the Board adopted the VMT Alternative at the September
11 board meeting and subsequently misled the public.
Sierra Club contends that it intended to present these documents to the
trial court at a hearing on the proposed discharge of the writ to show that the
County had adopted the VMT Alternative. However, on November 13, the
trial court discharged the writ without a hearing and Sierra Club was not
able to file these documents. The County opposes Sierra Club’s request
arguing that the evidence proffered is not part of the administrative record
because it was created after the September 11 meeting and is therefore
inadmissible.
“ ‘Although appellate courts are authorized to make findings of fact on
appeal by Code of Civil Procedure section 909 and rule [8.252(b)] of the
California Rules of Court, the authority should be exercised sparingly.
[Citation.] Absent exceptional circumstances, no such findings should be
made.’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) No exceptional
circumstances exist here. Even assuming it would have been proper for the
trial court to consider these documents, Sierra Club could have included them
along with the other exhibits it submitted accompanying its opposition below,
and it never suggested in those opposition papers that it intended to present
additional evidence at the hearing it requested. Moreover, appellate courts
generally only take new evidence on appeal “where to do so will result in the
litigation’s termination, either by affirming the judgment or reversing and
directing judgment be entered in favor of the appellant.” (Bombardier
Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216
Cal.App.4th 591, 605.) Here, Sierra Club is trying to revive the underlying
13
litigation based on evidence not previously presented to the trial court. For
these reasons, we deny the motion to take new evidence.6
III
On the merits, Sierra Club argues that the trial court prematurely
discharged the writ of mandate because it was required to find that the
County remedied the deficiencies identified in Golden Door II and that it
complied with CEQA before discharge. We reject this contention.
Where the trial court finds, as a result of a remand from an appellate
court, that a public agency has violated CEQA, the trial court shall enter a
peremptory writ of mandate directing the agency to take certain actions in
order to bring the agency into compliance with CEQA. (Save the Capitol,
supra, 101 Cal.App.5th at p. 1245.) To show compliance, the agency must file
a return informing the court of the agency’s actions in compliance with the
writ. (Id. at p. 1246.) Where the agency’s final return states that the court’s
mandate has been carried out, the petitioner may challenge the validity of
that claim by (1) filing a new or supplemental writ; or (2) challenging the writ
return as failing to demonstrate compliance with CEQA. (Id. at pp. 1246–
1247.) If the petitioner chooses the latter option, as Sierra Club did here, it
may not assert new CEQA challenges. (Id. at pp. 1249–1250.) Before
discharging the writ, the trial court must determine that the agency has
remedied the CEQA violations identified in the prior appellate opinion, “but
no new issues may be raised by objection to [the agency]’s writ return.” (Id.
at p. 1250.)
6 The County’s request for monetary sanctions, included in its opposition
to Sierra Club’s motions to correct the notice of appeal and take additional
evidence, is denied.
14
Here, Sierra Club forfeited its claim that the County did not remedy
the deficiencies identified in Golden Door II by failing to raise that issue in its
opposition to the County’s writ return. In its opposition, Sierra Club asserted
that the County had “not fully complied with [CEQA] due to inconsistencies
in its adoption of the [VMT Alternative].” Sierra Club claimed that the
County’s findings declaring the VMT Alternative as infeasible were
inconsistent with the Board’s adoption of the VMT Alternative. This internal
contradiction, Sierra Club argued, was a violation of CEQA. Sierra Club also
argued that the County was required to provide a timeline for
implementation of the VMT Alternative.
In Golden Door II, the only deficiency we identified relating to a smart
growth alternative was that the 2018 SEIR failed to analyze any such
alternative. (Golden Door II, supra, 50 Cal.App.5th at pp. 545–550, 562
[2018 SEIR violated CEQA because it failed to analyze a smart growth
alternative aimed at reducing vehicle miles traveled].) However, in its
opposition, Sierra Club did not assert that the 2024 SEIR failed to cure this
deficiency and did not even include the 2024 SEIR as an exhibit. In fact,
Sierra Club did not cite or discuss Golden Door II or Save the Capitol in its
opposition. While Sierra Club’s opposition stated it was “concerned” that the
County had “still not fully analyzed the [VMT Alternative],” it did so only in
passing as part of its argument that the County was required to adopt a
timeline for implementation of the VMT Alternative. Sierra Club’s opposition
papers did not identify any deficiency in the 2024 SEIR’s analysis and
instead “commend[ed] the [County] for its adoption of the [CAP] and the
[VMT Alternative] included in the CAP’s [EIR].” Moreover, the record
reflects that the 2024 SEIR did analyze various smart growth alternatives.
15
Sierra Club claims that “[l]ike in Save the Capitol, over [its] objections,
the trial court discharged the entire writ without ever reviewing the content
of the [2024] SEIR or the record of the reapproval . . . .” But Sierra Club did
not submit the 2024 SEIR to the trial court as part of its opposition papers,
did not ask the court to review the 2024 SEIR, and did not assert that the
County had failed to remedy any of the violations we identified in Golden
Door II. Sierra Club has forfeited any such claim by failing to raise it in the
trial court. (McDonald’s Corp. v. Board of Supervisors (1998) 63 Cal.App.4th
612, 618 [“theories not raised in the trial court may not be raised for the first
time on appeal”].)
In supplemental briefing submitted at our request on the forfeiture
issue, Sierra Club claimed it was deprived of the opportunity for full briefing
and a hearing on its objections in the trial court. But Sierra Club did not
raise this as an issue in its opening brief, and our request for supplemental
briefing did not allow the parties to raise new issues on appeal. Moreover,
Sierra Club did not request an opportunity to submit further briefing or
evidence in the trial court and has cited no authority requiring the court to
hold a hearing on the matter. Sierra Club filed a written opposition to the
proposed discharge of the writ with a supporting declaration and exhibits. It
could have submitted other exhibits with the opposition if it wished.
Accordingly, we are not persuaded that Sierra Club should be relieved of its
forfeiture on the ground that it was deprived of an opportunity for full
briefing and a hearing.
We further conclude that the other CEQA issues Sierra Club raised in
its opposition below and has now asserted on appeal were not properly before
the trial court. Because Sierra Club chose to challenge the County’s writ
return rather than file a new or supplemental writ petition, it was precluded
16
from raising new CEQA violations beyond those identified in Golden Door II.
(Save the Capitol, supra, 101 Cal.App.5th at pp. 1246–1247, 1250; see also
County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 204 (County of
Inyo) [declining to consider questions which broadened the issues beyond
those involving the preparation of a CEQA-compliant EIR as ordered in the
writ of mandate].)
Both of the issues Sierra Club raised in its opposition papers below
were “new issues” that could not “be raised by objection to [the agency]’s writ
return.” (Save the Capitol, supra, 101 Cal.App.5th at p. 1250.) First, Sierra
Club asserted that the final adopted findings of infeasibility contradicted the
County’s adoption of the VMT Alternative in September 2024. We did not
consider this issue in our 2020 decision in Golden Door II. The narrow CEQA
issue we decided was that the 2018 “SEIR violate[d] CEQA because it fail[ed]
to analyze a smart growth alternative to the Project.” (Golden Door II, supra,
50 Cal.App.5th at p. 562, italics added.) The required analysis of alternatives
in the SEIR is factually and legally distinct from the claimed CEQA violation
arising from the County’s subsequent decision whether to adopt one of the
alternatives.
Specifically, our decision in Golden Door II regarding the deficient 2018
SEIR was based on the County’s duty to prepare an EIR that “ ‘must consider
a reasonable range of potentially feasible alternatives.’ ” (Golden Door II,
supra, 50 Cal.App.5th at p. 545, italics added.) At the project approval phase,
by contrast, the issue becomes “whether the alternatives are actually
feasible.” (California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 981.) “At that juncture, the decision makers may reject as
infeasible alternatives that were identified in the EIR as potentially feasible.”
(Ibid.) “Significantly, different considerations and even different participants
17
may come into play at each of the two phases.” (Id. at p. 999.) “Broader
considerations of policy . . . come into play when the decisionmaking body is
considering actual feasibility than when the EIR preparer is assessing
potential feasibility of the alternatives.” (Id. at p. 1000.) Accordingly, the
issue we decided in Golden Door II regarding the 2018 SEIR’s failure to
analyze potentially feasible smart growth alternatives was factually and
legally different from the issue Sierra Club now raises regarding the County’s
allegedly contradictory 2024 findings on actual feasibility when it adopted
the new CAP.
Second, Sierra Club argued in its opposition below that the County was
required to provide a timeline for implementation of the VMT Alternative.
This is also a new issue that could not properly be raised by way of opposition
to the County’s writ return. (Save the Capitol, supra, 101 Cal.App.5th at
p. 1250.) The County’s timeline for implementing the VMT Alternative is
factually and legally distinct from the adequacy of the SEIR’s analysis of
smart growth alternatives. The factual basis for this claim is unrelated to
the EIR’s analysis of alternatives and the legal grounds for it do not arise
from the same CEQA provisions governing EIRs.
Finally, Sierra Club also argues on appeal that: (1) the County’s
“ ‘[s]election’ ” of the VMT Alternative in September 2024 misled the public
and “[d]odge[d]” legal accountability in violation of CEQA; and (2) the County
failed to adopt all feasible mitigation measures and alternatives in violation
of CEQA. (Boldface omitted.) To the extent these issues are meant to be
distinct from the two asserted in Sierra Club’s opposition papers below, they
have been forfeited because they are being raised for the first time on appeal.
But even if they were not forfeited for this reason, they are also factually and
legally different from the issue we decided in Golden Door II regarding the
18
2018 SEIR’s analysis of smart growth alternatives. These are also new
CEQA issues that could not properly be raised by way of objection to the
County’s final return. (Save the Capitol, supra, 101 Cal.App.5th at p. 1250.)
Sierra Club’s reliance on County of Inyo is misplaced. In County of
Inyo, the court issued a writ of mandate directing the City of Los Angeles to
prepare an EIR covering extraction of subsurface water in the Owens Valley.
(County of Inyo, supra, 71 Cal.App.3d at p. 188.) When the City of Los
Angeles submitted its final EIR, the County of Inyo objected to the return
asserting that the final EIR failed to comply with CEQA. (Ibid.) The court
sustained the County of Inyo’s objection to the city’s writ return on the
ground that the EIR was deficient but declined to consider other questions
raised by the parties, including the legality of the project approval resolution,
because those “questions broaden[ed] the issues beyond those entailed in the
measurement of the EIR’s sufficiency.” (Id. at pp. 203–204.) In other words,
the court found that the city’s failure to prepare a CEQA-compliant EIR was
properly asserted by way of objection to the return, but other issues relating
to the project approval were not.
As we have explained, the CEQA objections Sierra Club asserted in its
opposition below did not challenge the adequacy of the 2024 SEIR or its
analysis of smart growth alternatives. Instead, Sierra Club challenged the
County’s allegedly contradictory determinations of feasibility in connection
with its approval of the new CAP and the timeline for implementing the VMT
Alternative. These alleged CEQA violations are different from any of those
we identified in Golden Door II and not comparable to the deficient EIR in
County of Inyo. Under both County of Inyo and Save the Capitol, Sierra Club
was required to file a new or supplemental petition if it wanted to raise these
CEQA challenges because “no new issues may be raised by objection to [the
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agency]’s writ return.” (Save the Capitol, supra, 101 Cal.App.5th at p. 1250.)
We therefore affirm the trial court’s order.
DISPOSITION
The order is affirmed. The County is entitled to its costs on appeal.
BUCHANAN, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
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