Rialto Citizens for Responsible Growth v. City of Rialto (208 Cal. App. 4th 899, 2012)

Opinion

KING, J.

I. INTRODUCTION

Defendant, City of Rialto (the City), approved a 230,000-square-foot commercial retail center to be anchored by a 24-hour Wal-Mart “Supercenter” (the project). Plaintiff, Rialto Citizens for Responsible Growth (Rialto Citizens), petitioned the trial court for a writ of administrative mandate invalidating several project approvals, including the City’s resolution certifying the final environmental impact report (the EIR) for the project, several resolutions amending the City’s general plan and the “Gateway Specific Plan” governing the project site, and an ordinance approving a development agreement for the project.

The trial court entered judgment in favor of Rialto Citizens and issued a peremptory writ invalidating the challenged resolutions and ordinance. Real parties in interest, Wal-Mart Real Estate Business Trust, Wal-Mart Real Estate Business Trust, Inc., and Wal-Mart Real Estate Trust, Inc. (collectively Wal-Mart), appeal. The City and its redevelopment agency, another named defendant, join Wal-Mart’s appeal. Based on our de novo review of the City’s actions certifying the EIR and approving the project, we find no prejudicial abuse of discretion on the part of the City. (Code Civ. Proc., § 1094.5.) Accordingly, we reverse the judgment in its entirety.

H. SUMMARY OF CLAIMS AND CONCLUSIONS

Wal-Mart claims for the first time on appeal that Rialto Citizens lacks standing to challenge the project approvals because neither it nor any of its members are beneficially interested in the issuance of the judgment or writ. Based on the record before us, we conclude that Rialto Citizens has public interest standing. It is therefore unnecessary to determine whether Rialto Citizens or any of its members have a beneficial interest in the issuance of judgment or the writ.

In a separate part of this opinion, we address whether the City violated the Planning and Zoning Law (Gov. Code, § 65000 et seq.) in approving the project. The trial court set aside the City’s resolutions approving the general and specific plan amendments and the ordinance approving the development agreement on the ground the City violated the Planning and Zoning Law in two respects. First, the court concluded that the notice of the public hearing on the project before the City Council was defective because it did not include the planning commission’s earlier recommendations that the City Council approve the plan amendments and the development agreement. (§§ 65033, 65094.) The court also ruled that the City erroneously adopted the ordinance approving the development agreement without expressly finding that the provisions of the agreement were consistent with the general and specific plans governing the project site, as the Planning and Zoning Law also requires. (§ 65867.5, subd. (b).)

On independent review of these legal questions, we agree with the trial court that the notice of hearing was defective because it did not include the planning commission’s recommendations. We also agree that the City erroneously adopted the ordinance approving the development agreement without finding that the provisions of the agreement were consistent with the general and specific plans. Importantly, however, Rialto Citizens made no attempt to show and the trial court did not find that either the defective notice of hearing or the omitted factual finding resulted in prejudice, substantial injury, and that a different result was probable absent these errors or omissions. (§ 65010, subd. (b).) In the absence of these factual findings by the trial court, the resolutions approving the plan amendments and the ordinance approving the development agreement were erroneously invalidated as a matter of law.

In the final part of this opinion, we address whether the City violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) in approving the project, specifically in certifying the EIR and in rejecting a “reduced density alternative” as infeasible. The trial court ruled that the EIR was inadequate and therefore erroneously certified because (1) its project description did not identify the development agreement as an approval required to implement the project; (2) it inadequately analyzed the project’s cumulative impacts on air quality, traffic, greenhouse gas emissions and global climate change; and (3) it improperly deferred mitigation measures to reduce the project’s potential impacts on five special status plant species and three special status wildlife species, namely, the San Bernardino and Stephens’ kangaroo rats and the burrowing owl. The court also concluded that insufficient evidence supported the City Council’s factual finding, at the project approval stage, that the reduced density alternative to the project was infeasible.

We agree with the trial court that the project description was inadequate because it did not identify the development agreement as an approval required to implement the project. Importantly, however, this omission did not preclude or undermine informed decisionmaking on the project as a whole or the development agreement, because the ordinance approving the development agreement was duly noticed and considered, along with other project approvals, at the public hearing on the project before the City Council.

We also conclude, contrary to the trial court’s rulings, that the EIR adequately analyzed the project’s cumulative impacts on air quality, traffic, greenhouse gas emissions and global climate change, and did not improperly defer mitigation of potential impacts on any of the special status plant or wildlife species. Lastly, we conclude that substantial evidence supports the City’s finding, at the project approval stage, that the reduced density alternative was infeasible.

Thus we find no prejudicial violations of either the Planning and Zoning Law or CEQA in the City’s approval of the project.

III. BACKGROUND

A. The Project

As approved on July 15, 2008, the project consists of an approximately 230,000-square-foot commercial retail center, anchored by a 24-hour Wal-Mart Supercenter with 197,639 square feet of retail floor space. The Wal-Mart Supercenter would sell general merchandise, groceries, and liquor. It would also include a pharmacy with a “two-lane drive-thru,” a vision and hearing care center, food service center, photographic studio and photographic finishing center, banking center, garden center, tire and lube facilities, and outdoor sales facilities.

In addition to the Wal-Mart Supercenter, the project includes four commercial outparcels, a gas station with 16 fueling pumps, and a detention/retention basin for storm water. The project will have a total of 1,143 parking spaces, including 880 on the Wal-Mart Supercenter parcel, and is expected to generate 17,317 additional daily vehicle trips. The project is located on 25.18 acres of vacant land, bounded by San Bernardino Avenue to the north, industrial uses and additional vacant land to the south, Riverside Avenue to the east, and Willow Avenue to the west.

B. The EIR and Project Approvals

A draft EIR for the project was issued in May 2007 and circulated between May 18, 2007, and July 2, 2007. On July 15, 2008, following public hearings on the project before the planning commission and the City Council, the City Council adopted resolution No. 5612 certifying the final EIR, dated June 2008, and adopting factual findings and a statement of overriding considerations. The final EIR concluded that the project would have significant impacts on traffic, noise, and air quality despite mitigation measures to reduce these impacts.

Also on July 15, 2008, and as part of the project approvals, the City Council adopted resolution No. 5613 amending the City’s general plan; resolutions Nos. 5614 and 5615 amending the Gateway Specific Plan; and ordinance No. 1424 approving the development agreement between the City and Wal-Mart Real Estate Business Trust, Inc. The general and specific plan amendments changed the permitted land use on the project site from office to general commercial, and from office park to retail commercial, respectively.

IV. ANALYSIS/PUBLIC INTEREST STANDING

We first address Wal-Mart’s claim that Rialto Citizens lacks standing to bring the present writ petition. Lack of standing is a jurisdictional defect that may be raised at any time, including, as it is here, for the first time on appeal. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 751 [115 Cal.Rptr.3d 89].)

As we explain, Rialto Citizens has standing under the “public interest exception” to the general rule that a party must be beneficially interested in the issuance of a writ in order to petition for the writ. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232-1233 [94 Cal.Rptr.2d 740] (Waste Management), disapproved on other grounds in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 169-170 [127 Cal.Rptr.3d 710, 254 P.3d 1005] (Save the Plastic Bag Coalition).) It is therefore unnecessary to determine whether Rialto Citizens or any of its members was beneficially interested in the issuance of the writ. (Code Civ. Proc., § 1086.)

In its opening trial brief in support of its writ petition filed in January 2009, Rialto Citizens claimed it had standing to bring the petition and had exhausted all available administrative remedies. To support these claims, Rialto Citizens adduced the declaration of Richard Lawrence, the president of Rialto Citizens and Citizens for Responsible Equitable Environmental Development (CREED), both nonprofit corporations. Lawrence averred that, over the previous several years, CREED had advocated to ensure that “big box” development projects met all of the requirements of CEQA and other planning, zoning, and land use laws.

According to Lawrence, around May 31, 2008, CREED began commenting on the project through the Briggs Law Corporation, using the name Rialto Citizens for Responsible Growth. At that time, Rialto Citizens was an unincorporated nonprofit association, and CREED was one of its members. The record also includes a letter dated July 1, 2008, to the City Council from the Briggs Law Corporation on behalf of Rialto Citizens, urging the City Council not to approve the project and explaining why the project would violate CEQA, the Planning and Zoning Law, and other land use laws.

As indicated, the City Council certified the EIR and approved the project following a public hearing on July 15, 2008. On August 1, 2008, Rialto Citizens became a nonprofit public benefit corporation, organized to promote “social welfare through advocacy for and education regarding responsible and equitable environmental development.” The corporate entity, Rialto Citizens, then filed the present writ petition on August 8, 2008. (Pub. Resources Code, § 21177, subds. (b), (c) [organization formed after approval of a project may maintain CEQA action if a member of that organization objected to the approval of the project prior to the close of the public hearing on the project].)

As a general rule, legal standing to petition for a writ of mandate requires the petitioner to have a beneficial interest in the writ’s issuance. (Regency Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153 Cal.App.4th 825, 829 [63 Cal.Rptr.3d 287]; Code Civ. Proc., § 1086.) A petitioner is beneficially interested if he or she has “ ‘some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’ ” (Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 165, quoting Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796 [166 Cal.Rptr. 844, 614 P.2d 276].)

Beneficially interested parties “are ‘ “in fact adversely affected by governmental action” ’ and have standing in their own right to challenge that action. [Citation.]” (Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 170.) A beneficial interest must be “direct and substantial.” (Id. at p. 165.) Thus, “the writ must be denied if the petitioner will gain no direct benefit from its issuance and suffer no direct detriment if it is denied.” (Waste Management, supra, 79 Cal.App.4th at p. 1232.) The beneficial interest requirement applies to ordinary as well as administrative mandate proceedings, including those alleging CEQA violations. (Waste Management, at pp. 1232-1233.)

A petitioner who is not beneficially interested in a writ may nevertheless have “ ‘citizen standing’ ” or “public interest standing” to bring the writ petition under the “public interest exception” to the beneficial interest requirement. (Save the Plastic Bag Coalition, supra, 52 Cal.4th at pp. 170, fn. 5, 166; see Regency Outdoor Advertising, Inc. v. City of West Hollywood, supra, 153 Cal.App.4th at p. 832.) The public interest exception “applies where the question is one of public right and the object of the action is to enforce a public duty—in which case it is sufficient that the plaintiff be interested as a citizen in having the laws executed and the public duty enforced. [Citations.]” (Waste Management, supra, 79 Cal.App.4th at pp. 1236-1237.) The public interest exception “ ‘promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right.’ [Citations.]” (Save the Plastic Bag Coalition, supra, at p. 166.)

Wal-Mart claims Rialto Citizens lacks public interest standing to challenge the City’s actions certifying the EIR and approving the project because it has not shown it meets any of the four criteria formulated by the Waste Management court for determining whether a corporate entity has public interest standing. These are (1) whether the corporation has shown a continuing interest in or commitment to the public right being asserted; (2) whether it represents individuals who would be beneficially interested in the action; (3) whether individuals who are beneficially interested would find it difficult or impossible to seek vindication of their own rights; and (4) whether prosecution of the action as a citizen suit by a corporation would conflict with other competing legislative policies. (Waste Management, supra, 79 Cal.App.4th at p. 1238.)

In July 2011, after Wal-Mart filed its opening brief on this appeal, the court in Save the Plastic Bag Coalition disapproved Waste Management “to the extent it held that corporate parties are routinely subject to heightened scrutiny when they assert public interest standing,” and accordingly placed a corporation’s ability to invoke the public interest exception on equal footing with natural persons. (Save the Plastic Bag Coalition, supra, 52 Cal.4th at pp. 169-170, fn. omitted.) The court reasoned that, in the context of a citizen suit, or for purposes of public interest standing, “[t]he term ‘citizen’ ... is descriptive, not prescriptive. It reflects an understanding that the action is undertaken to further the public interest and is not limited to the plaintiff’s private concerns. Entities that are not technically ‘citizens’ [(including corporations)] regularly bring citizen suits. [Citations.] Absent compelling policy reasons to the contrary, it would seem that corporate entities should be as free as natural persons to litigate in the public interest. [Citation.]” (Id. at p. 168.) The court cautioned, however, that public interest standing is not “freely available to business interests lacking a beneficial interest in the litigation,” and no party may proceed with a mandamus petition “as a matter of right” under the public interest exception. (Id. at p. 170, fn. 5.) In some cases, “ ‘[t]he policy underlying the exception may be outweighed by competing considerations ....’” (Ibid.)

On the record before this court, there is no compelling policy reason why Rialto Citizens should not have public interest standing to challenge the City’s project approvals on the CEQA and non-CEQA grounds raised in the petition. As the Lawrence declaration shows, Rialto Citizens is a nonprofit public benefit corporation formed for the purpose of promoting “social welfare through advocacy for and education regarding responsible and equitable environmental development.” And by its writ petition, Rialto Citizens seeks to enforce the City’s public duties to comply with CEQA and the Government Code in considering and approving the project.

In contrast to the present case, Waste Management involved a corporate landfill operator whose commercial or competitive interests were deemed an impediment to its public interest standing. (See Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 167; Waste Management, supra, 79 Cal.App.4th at p. 1228.) The landfill operator petitioned for a writ of mandate directing that permits issued to one of its competitors be set aside pending CEQA review of the environmental effects of the competitor’s operations. The court concluded that the landfill operator lacked a beneficial interest and also lacked public interest standing. (Waste Management, supra, at pp. 1235-1237.)

Unlike the corporate landfill operator in Waste Management, Rialto Citizens is a nonprofit public benefit corporation, and as such has no commercial or competitive interests to undermine or override its public interest standing. Thus here, it is appropriate to apply the public interest exception.

It has long been observed that “ ‘strict rules of standing that might be appropriate in other contexts have no application where broad and long-term [environmental] effects are involved.’ [Citation.]” (Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 170; see Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1138-1139 [119 Cal.Rptr.2d 410] [Fourth Dist., Div. Two]; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198 [22 Cal.Rptr.3d 203] [noting CEQA’s “liberal standing” requirement].) The City’s certification of the EIR and its other actions approving the project will have broad and long-term environmental effects, and the City has a public duty to comply with the Planning and Zoning Law and CEQA in considering and approving the project. In sum, based on the record before us, Rialto Citizens has public interest standing to challenge the City’s actions certifying the EIR and approving the project—even if neither Rialto Citizens nor any of its members have a direct and substantial beneficial interest in the issuance of the writ.

V. ANALYSIS/PLANNING AND ZONING LAW VIOLATIONS

A. The Notice of the Public Hearing Before the City Council Was Defective, but There Was No Showing That the Defective Notice Was Prejudicial (§§ 65094, 65010, subd. (b))

Following a May 28, 2008, public hearing on the project, the planning commission certified the EIR and recommended that the City Council approve and adopt the general and specific plan amendments and the development agreement for the project. On June 21, 2008, the City published a revised notice in the San Bernardino County Sun newspaper, stating that on July 1, 2008, the City Council would hold a public hearing to consider certifying the EIR, adopting the plan amendments, and adopting the development agreement. At the close of the July 1 hearing, the City Council continued the hearing to July 15. On July 15, the City Council certified the EIR, adopted the general and specific plan amendments, and adopted the development agreement.

In the trial court, Rialto Citizens claimed and the trial court agreed that the notice of the July 1 public hearing before the City Council violated the Planning and Zoning Law because it did not indicate whether the planning commission had recommended that the City Council approve the plan amendments or the development agreement. (§ 65094.) On this appeal, Wal-Mart contends, as it did in the trial court, that the notice was not required to include the planning commission’s recommendations. Instead, Wal-Mart argues that the notice complied with section 65094 because it included the date, time, and place of the hearing and further stated, among other things, that the approval of the plan amendments and the development agreement would be considered at the July 1 public hearing before the City Council.

We agree that the notice was required to include the planning commission’s recommendations. But Rialto Citizens made no attempt to show in the trial court, and the trial court did not find, that the defective notice was prejudicial, caused substantial injury to anyone, or that a different result was probable absent the defect. (§ 65010, subd. (b).) Thus as a matter of law, the plan amendments and the development agreement were erroneously invalidated based on the defective notice.

Under the Planning and Zoning Law (§ 65000 et seq.), notices of public hearings on general and specific plan amendments and development agreements must be given in accordance with section 65090. (§§ 65355, 65453, subd. (a), 65867.) Under section 65090, the notice must include “the information specified in Section 65094.” (§ 65090, subd. (b).) Section 65094, in turn, defines a notice of public hearing as one that includes, among other things, “a general explanation of the matter to be considered’ at the hearing. (Italics added.) The interpretation of a statute and its application to undisputed facts are questions of law subject to de novo review. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 722 [39 Cal.Rptr.3d 189].)

The question here is whether the notice of the July 1 public hearing before the City Council was required to include the planning commission’s recommendations to adopt the plan amendments and development agreement as part of “a general explanation of the matter to be considered” at the public hearing. (§ 65094.) Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877 [70 Cal.Rptr.3d 474] (Environmental Defense Project), an action for declaratory relief, is on point and persuasive.

At issue in Environmental Defense Project was whether the County of Sierra’s so-called streamlined zoning process—in which the county routinely gave notices of hearings before its board of supervisors on proposed zoning ordinances and amendments (§ 65856) before its planning agency made its recommendations to the board—violated the Planning and Zoning Law. (Environmental Defense Project, supra, 158 Cal.App.4th at p. 881.) The court concluded that the notices of hearing had to be given after the board received the planning commission’s recommendations, not before. (Id. at pp. 881, 888-889.) Importantly, the court also concluded that the notices “must include the planning commission’s recommendation as part of the ‘general explanation of the matter to be considered’ (§ 65094).” (Id. at p. 881.)

Wal-Mart maintains that the second part of the court’s holding in Environmental Defense Project is dictum. Indeed, as Wal-Mart points out, it was not necessary for the court to determine that the planning commission’s recommendations had to be included in the notices of hearing before the board of supervisors in order to determine the question presented, which was whether the notices, as a matter of course, had to be given after the board of supervisors received the planning commission’s recommendations. Here, the trial court acknowledged that the second part of the court’s holding “might be technically classified as dicta,” but found the court’s reasoning on the point persuasive and applicable to the present notice issue. So do we.

The court in Environmental Defense Project reasoned that section 65094 is properly read in conjunction with the state’s policy and the Legislature’s intent, expressed in section 65033, that the public “be involved in the planning process and be given ‘the opportunity to respond to clearly defined alternative objectives, policies, and actions.’ (§ 65033.)” (Environmental Defense Project, supra, 158 Cal.App.4th at p. 891.) After considering section 65094 in the context of the statutory framework of which it is a part, the court concluded: “[Tjhere can be little doubt that the purpose of notice in cases such as this one is to inform the public of the legislative body’s hearing so they will have an opportunity to respond to the planning commission’s recommendation and protect any interests they may have before the legislative body approves, modifies, or disapproves that recommendation. If notice could be given before the planning commission made its recommendation and, therefore, without inclusion of what that recommendation was, the purpose behind the notice provision would be ill served, as the notice would not inform the public to what ‘clearly defined alternative objectives, policies, and actions’ they would be responding.” (Environmental Defense Project, supra, at pp. 889, 891-892, italics added.)

The record before the court supported its conclusions. The Sierra County Planning Department recommended approving a tentative parcel map and a zoning ordinance amendment at a January 27, 2005, meeting, and made changes to the project during that meeting. (Environmental Defense Project, supra, 158 Cal.App.4th at p. 892.) Notice of a February 1 hearing before the board of supervisors was given on January 20, before the planning department made its January 27 recommendations. Additionally, the planning department’s project changes and recommendations were not transmitted to the board until late during the day on January 28, giving the public only one full business day to prepare comments on the changes and recommendations before the February 1 hearing before the board. (Ibid.) At the board hearing, the plaintiff commented that, due to the county’s streamlined zoning procedure, she did not have sufficient time to “ ‘conduct a meaningful review of the project recommended for approval by the [planning commission],’ ” and this “ ‘detracted] from the public’s participation in the process.’ ” (Ibid.)

Unlike the notice in Environmental Defense Project, which was given before the planning department made its recommendations to the board of supervisors, the notice of the July 1 public hearing before the City Council was given on June 21, several weeks after the planning commission made its recommendations on May 28. But like the notice in Environmental Defense Project, the notice of the July 1 hearing did not include the planning commission’s recommendations on the matters to be considered at the hearing, even though the recommendations were made well before the notice was given.

As Environmental Defense Project explains, section 65033 recognizes “the importance of public participation at every level of the planning process,” and expresses “the policy of the state and the intent of the Legislature” that the public “be afforded the opportunity to respond to clearly defined alternative objectives, policies, and actions.” (§ 65033; see Environmental Defense Project, supra, 158 Cal.App.4th at p. 891.) In light of the policy of full public participation expressed in section 65033, the planning commission’s recommendations were a necessary part of “a general explanation of the matter to be considered” (§ 65094) at the July 1 hearing, and as such were required to be included in the notice of that hearing. (See Environmental Defense Project, supra, at p. 889 [courts must not consider statutory language in isolation but look to the entire substance of the statute, harmonizing its parts and considering its clauses or sections in the context of the statutory framework as a whole].)

Nevertheless, the City Council’s actions approving the plan amendments and the development agreement were erroneously invalidated based solely on the defective notice of public hearing. Under the Planning and Zoning Law, a court may not set aside the actions of a legislative body based on an error or omission in a notice of public hearing, unless the court finds the error was prejudicial, the complaining party suffered substantial injury, and a different result was probable had the error not occurred. (§ 65010, subd. (b).) Neither prejudice, substantial injury, nor the probability of a different result may be presumed based on a showing of error alone. (Ibid..)

In the trial court, Rialto Citizens made no attempt to show, and the trial court did not find, that the defective notice of hearing resulted in prejudice or substantial injury to anyone, or that a different result was probable had the notice included the planning commission’s recommendations. (§ 65010, subd. (b).) For that matter, none of the parties informed the trial court that it had to find prejudice, substantial injury, and that a different result was probable absent the defective notice, before it could invalidate the plan amendments and the development agreement based on the defective notice. (Ibid.) Instead, the parties focused on whether Environmental Defense Project was controlling on the question of whether the notice was defective, but the case did not involve the application of section 65010, subdivision (b).

Environmental Defense Project involved an action for declaratory relief, and as the court there pointed out, section 65010, subdivision (b) does not apply to actions for declaratory relief. (Environmental Defense Project, supra, 158 Cal.App.4th at p. 887.) In affirming the judgment of the trial court granting declaratory relief, the court did not set aside the board’s actions approving the tentative parcel map and zoning amendment. (Id. at pp. 883, 894.) Indeed, the plaintiff was not seeking to set aside the board’s actions, but a judicial declaration that the county’s “streamlined zoning process,” violated the Planning and Zoning Law. (158 Cal.App.4th at p. 882.) In short, Environmental Defense Project did not involve the application of section 65010, subdivision (b).

Rialto Citizens maintains Wal-Mart has forfeited its right to complain that Rialto Citizens did not demonstrate prejudice, substantial injury, or a probability of a different result based on the defective notice of hearing, because Wal-Mart did not raise these failure-of-proof issues in the trial court. Not so.

As the party seeking to set aside the City’s actions approving the plan amendments and the development agreement based on the defective notice, Rialto Citizens had the burden of demonstrating prejudice, substantial injury, and the probability of a different result under section 65010, subdivision (b), but failed to do so. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 819-820 [85 Cal.Rptr.2d 696, 977 P.2d 693] [party contesting administrative action, which is presumed correct, has burden of producing evidence and proving action was incorrect]; Evid. Code, §§ 110, 115, 664.) Instead, Rialto Citizens relied on the defective notice alone as invalidating the plan amendment and development agreement approvals. But the City’s approval of the plan amendments and the development agreement were erroneously set aside based on the defective notice alone, without a showing that the defective notice resulted in prejudice and substantial injury, and that a different result was probable had the notice not been defective. (§ 65010, subd. (b).)

Lastly, Rialto Citizens argues there is evidence in the record “that would support the trial court’s opinion that the [defective] notice inhibited full public participation.” We disagree. But even if the record arguably contains any such evidence, the court’s conclusion that the defective notice “inhibited full public participation” is unsupported by the necessary, underlying factual findings of prejudice, substantial injury, and the probability of a different result absent the error. (§ 65010, subd. (b).) Nor is it the province of this court to make such factual findings, particularly when, as here, undisputed evidence does not support such findings. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2011) | 1:12, p. 1-2 (rev. # 1, 2009).)

Section 65010, formerly section 65801, is a “curative statute” enacted by the Legislature for the purpose of “terminating recurrence of judicial decisions which had invalidated local zoning proceedings for technical procedural omissions. [Citations.]” (City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 557-558 [90 Cal.Rptr. 843].) On this record, the failure of the notice of the public hearing before the City Council to include the planning commission’s recommendations on the matters to be considered at the hearing was a harmless omission.

B. The City Council Erroneously Approved the Development Agreement Without Finding Its Provisions Were Consistent with the General Plan and the Gateway Specific Plan (§ 65867.5), but There Was No Showing That the Omitted Finding Was Prejudicial (§ 65010, subd. (b))

Under the Planning and Zoning Law, “[a] development agreement is a legislative act that shall be approved by ordinance . . .” and “shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.” (§ 65867.5, subds. (a), (b).) In the trial court, Rialto Citizens claimed, and the trial court agreed, that the City improperly approved the project without finding that the development agreement was consistent with the general plan and the Gateway Specific Plan, and on this basis the trial court invalidated the ordinance approving the development agreement.

On this appeal, Wal-Mart claims that substantial evidence in the record shows that the City did in fact find that the development agreement was consistent with the general and specific plans. We disagree. The record nowhere indicates that the City made this finding.

To be sure, at its May 28, 2008, hearing, the planning commission approved and adopted resolution No. 8-25, finding that “the provisions of the proposed Development Agreement are consistent with the General Plan and Specific Plan . . . .” Then, on July 15, 2008, the City Council adopted resolution No. 5612, certifying the EIR as complying with CEQA. The City’s CEQA findings are attached to resolution No. 5612 as exhibit A. On the same date, the City adopted the general and specific plan amendments and the ordinance approving the development agreement. But none of these documents include a finding that the provisions of the development agreement were consistent with the general plan and the Gateway Specific Plan. Nor do any of these documents adopt the planning commission’s resolution No. 8-25, or its consistency finding.

Wal-Mart maintains that the City’s resolution No. 5612 and CEQA findings effectively include a finding that the development agreement was consistent with the general and specific plans. Not so. Though the caption or title of resolution No. 5612 refers to the plan amendments and the development agreement, the resolution focuses solely on the EIR and certifies the EIR, and does not mention the development agreement or the plan amendments outside of its caption. The CEQA findings state that the project would be consistent with “the land use plan and relevant policies of the [g]eneral [p]lan,” and that the project “would be in compliance with the applicable goals and policies of the Gateway Specific Plan.” But neither the EIR nor the CEQA findings define the project as including the development agreement. Thus, neither resolution No. 5612 nor the CEQA findings include a finding that the development agreement was consistent with the general plan and the Gateway Specific Plan.

Nevertheless, the trial court erroneously invalidated the ordinance approving the development agreement based solely on the City’s failure to make the consistency finding. (§ 65867.5, subd. (b).) In order to invalidate the ordinance, the court had to find that the absence of the consistency finding resulted in prejudice and substantial injury and that a different result (e.g., disapproval of the ordinance) was probable absent the omitted finding. (§ 65010, subd. (b).) The court did not make this finding.

Indeed, Rialto Citizens did not claim in the trial court, and does not claim on this appeal, that any of the provisions of the development agreement were inconsistent with the general and specific plans, as these plans were amended to accommodate the project. By all appearances, the City’s failure to make the section 65867.5 consistency finding, particularly after the planning commission made the finding, was an oversight and did not result in prejudice or substantial injury to anyone. (§ 65010, subd. (b).) Further, there is no indication that a different result was probable had the City made the consistency finding. (Ibid.)

VI. ANALYSIS/CEQA ISSUES

We next consider Wal-Mart’s claims concerning the sufficiency of the EIR as an informational document, and the City Council’s finding, in approving the project, that the reduced density alternative was infeasible. We find no prejudicial abuse of discretion on the part of the City Council, either in its certification of the EIR as complying with CEQA or in its rejection, at the project approval stage, of the reduced density alternative as infeasible.

A. Standard of Review

In reviewing a petition challenging the legality of a lead agency’s actions under CEQA, our role is the same as the trial court’s. We review the agency’s actions, not the trial court’s decision, and our inquiry extends “only to whether there was a prejudicial abuse of discretion” on the part of the agency. (Pub. Resources Code, § 21168.5; see Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 326-327 [118 Cal.Rptr.3d 182] [Fourth Dist., Div. Two].) An abuse of discretion is established if the agency has not proceeded in a manner required by law or if its factual determinations are not supported by substantial evidence. (Pub. Resources Code, § 21168.5; Vineyard Area Citizens For Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426 [53 Cal.Rptr.3d 821, 150 P.3d 709].) For purposes of CEQA, 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.” (Cal. Code Regs., tit. 14, § 15384, subd. (a).)

Questions concerning the proper interpretation or application of the requirements of CEQA are matters of law. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118 [104 Cal.Rptr.2d 326].) CEQA requires that an EIR include detailed information concerning, among other things, the significant environmental effects of the project under consideration. (Pub. Resources Code, §§ 21100, 21100.1.) When the informational requirements of CEQA are not met but the agency nevertheless certifies the EIR as meeting them, the agency fails to proceed in a manner required by law and abuses its discretion. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, at pp. 117-118.) “ ‘The EIR is the heart of CEQA,’ and the integrity of the process is dependent on the adequacy of the EIR. [Citations.]” (Ibid.)

In reviewing the lead agency’s actions under CEQA, we do not “ ‘ “ ‘pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’ ” [Citation.] 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. “Our limited function is consistent with the principle that ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ ” [Citations.] We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements.’ ” (Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 905 [19 Cal.Rptr.2d 344].)

The Legislature intended CEQA ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 [253 Cal.Rptr. 426, 764 P.2d 278].) “The EIR is the primary means of achieving the Legislature’s considered declaration that it is the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ [Citation.] ... An EIR is an ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.’ [Citations.] The EIR is also intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.’ [Citations.] Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government.” (Id. at p. 392.)

An EIR is presumed legally adequate, however (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740 [22 Cal.Rptr.2d 618]; Pub. Resources Code, § 21167.3), and the agency’s certification of an EIR as complying with the requirements of CEQA is presumed correct (Cherry Valley Pass Acres & Neighbors v. City of Beaumont, supra, 190 Cal.App.4th at p. 327). Persons challenging the EIR therefore bear the burden of proving it is legally inadequate, or that insufficient evidence supports one or more of its conclusions. (Ibid.)

“ ‘[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA.’ [Citation.] The error is prejudicial ‘if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’ [Citation.]” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721-722 [32 Cal.Rptr.2d 704].)

Still, “ ‘[a]bsolute perfection is not required,’ ” and the level of analysis in an EIR “is subject to a rule of reason.” (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 406-407.) The absence of information in an EIR does not per se constitute a prejudicial abuse of discretion. (Pub. Resources Code, § 21005.) Instead, “ ‘[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. [Citation.]’ [Citation.]” (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at p. 748.)

B. The Project Description Was Incomplete Because It Did Not Identify the Development Agreement as an Approval Required to Implement the Project, But This Omission Did Not Preclude Informed Decisionmaking Concerning the Project

In the trial court, Rialto Citizens claimed, and the trial court agreed, that the project description in the EIR was incomplete and therefore inadequate because it did not include the development agreement in a listing of “permits and other approvals required to implement the project.” (Guidelines, § 15124, subd. (d)(1)(B), italics added.) Wal-Mart claims the project description was not required to include the development agreement because the agreement was not a permit or approval required to implement the project. Wal-Mart is mistaken, but as we explain, the failure to identify the development agreement as part of the project did not preclude informed public participation and decisionmaking concerning the project, because the approval of the development agreement was duly noticed and considered at the July 1 and July 15, 2008, public hearings on the project, along with the certification of the EIR and the other project approvals.

CEQA applies to “discretionary projects proposed to be carried out or approved by public agencies.” (Pub. Resources Code, § 21080, subd. (a).) The term “project” is broadly defined as meaning “the whole of an action, which has a potential for resulting in ... a direct physical change in the environment,” directly or ultimately (Guidelines, § 15378, subd. (a)), and refers to “the activity which is being approved and which may be subject to several discretionary approvals,” but “does not mean each separate governmental approval” (id., subd. (c)). The Guidelines require the project description to include “[a] statement briefly describing the intended uses of the EIR,” and this statement must include, “to the extent that the information is known to the lead agency,” “\a\ list of permits and other approvals required to implement the project.” (Guidelines, § 15124, subd. (d)(1)(B), italics added.)

As Wal-Mart points out, the purpose of a development agreement is to “vest the previously obtained approvals” or give assurance to the applicant that upon approval of the project it may proceed with the project in accordance with existing policies, rules and regulations. (§ 65864, subd. (b).) We disagree, however, with Wal-Mart’s argument that a development agreement “does not, itself, constitute a permit or approval, much less a required permit or approval.”

A development agreement is a legislative act that must be approved by ordinance. (Gov. Code, § 65867.5, subd. (a).) As such, it qualifies as an approval. Further, the City’s approval of the development agreement was “required to implement the project” (Guidelines, § 15124, subd. (d)(1)(B)), even if the approval was required by Wal-Mart, rather than by the City, to assure Wal-Mart that it could implement the project based on other project approvals. The record also indicates that the City knew the development agreement would be required when the EIR was prepared. (Id., subd. (d)(1).) Thus the development agreement was erroneously excluded from the list of permits and other approvals required to implement the project—even though the agreement did not identify any permits or approvals not listed in the EIR.

Nevertheless, “ ‘[njoncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown. [Citation.]’ [Citation.]” (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1384-1385 [119 Cal.Rptr.3d 481], fn. omitted.) Based on the record, it is clear that the City’s failure to include the development agreement in the project description was not prejudicial. The approval of the development agreement was duly noticed and considered at the public hearings on the project before the City Council, along with the certification of the EIR and other project approvals. The City Council approved the development agreement by ordinance. (§ 65867.5.) Thus, the omission of the development agreement from the project description in the EIR did not undermine informed public participation or decision-making concerning the approval of the development agreement or the project as a whole. (Pub. Resources Code, § 21005; Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949, 959-960 [130 Cal.Rptr.3d 527]; Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at p. 748.) Accordingly, the City did not prejudicially abuse its discretion in omitting the development in the EIR’s project description.

Native Sun/Lyon Communities v. City of Escondido, supra, 15 Cal.App.4th 892 is instructive. There, a development agreement was included in the project description, but the contents of the agreement were not discussed in the EIR. (Id. at p. 909.) The court concluded, however, that it was unnecessary to discuss the development agreement in the EIR, because its inclusion in the project description “alerted persons interested in [the agreement] to its relevance in the decisionmaking process.” (Ibid.)

Similarly, the inclusion of the development agreement in the notice of the public hearing on the project before the City Council alerted interested persons to its relevance in the decisionmaking process for the project. It was therefore unnecessary to discuss the development agreement in the EIR. Indeed, the provisions of the agreement were not germane to an analysis of the project’s potential environmental impacts. (See Guidelines, § 15124 [project description should not supply extensive detail beyond that needed for evaluation and review of environmental impacts]; Pub. Resources Code, § 21083.1 [Guidelines are not to be interpreted to impose procedural or substantive requirements beyond those explicitly stated in the Guidelines].)

Rialto Citizens argues that the City prejudicially erred in failing to discuss the development agreement in the EIR, because the development agreement provided that, upon certain conditions, Wal-Mart was to be reimbursed for traffic and storm runoff improvements it made outside the “footprint” of the project site. We disagree. The reimbursements were not germane to the environmental impacts of the project. Additionally, Rialto Citizens has not shown that the development agreement required Wal-Mart to make any improvements that were not discussed in the EIR. Thus it was unnecessary to discuss the development agreement in the EIR.

C. The EIR Adequately Analyzed the Project’s Cumulative Impacts on Traffic

Under CEQA, “ ‘[c]umulative impacts’ refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” (Guidelines, § 15355.) The Guidelines define “[t]he cumulative impact from several projects” as “the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.” (Id., subd. (b).)

An EIR is required to discuss the cumulative impacts of a project “when the project’s incremental effect is cumulatively considerable.” (Guidelines, § 15130, subd. (a).) The discussion “should be guided by the standards of practicality and reasonableness,” but several elements are deemed “necessary to an adequate discussion of significant cumulative impacts . . . .” (Id., subd. (b).) These necessary elements include either “(A) A list of past, present, and probable future projects producing related or cumulative impacts, including, if necessary, those projects outside the control of the agency, or [f] (B) A summary of projections contained in an adopted [general] plan, or related planning document, ... [or in a] prior environmental document” which has been adopted or certified, which described or evaluated regional or areawide conditions contributing to the cumulative impact. “Any such [planning] document shall be referenced and made available to the public at a location specified by the lead agency.” (Id., subd. (b)(1)(A)—(B).)

The trial court ruled that the EIR inadequately analyzed the project’s cumulative impacts on traffic because the analysis was not based on “a list of anticipated projects,” nor did it “work off of a prior document that assembled such a list.” (See Guidelines, § 15130, subd. (b)(1)(A).) The court pointed out that “rather than work off of a list of projects the cumulative traffic analysis was done by projecting traffic based on ‘updated socioeconomic data and the extension of the State Route 210 freeway to its current terminus.’ . . . This would appear to be insufficient under the Guideline[s], . . . which requires either a list of anticipated projects or working off of a prior document that assembled such a list. Neither was done in the present case, and the general projections described in the EIR thus leave anyone examining the EIR unable to question what projects were included (or excluded) and thus unable to properly question the sufficiency of the analysis.” (Fn. omitted.)

As we explain, the trial court misapprehended the basis of the EIR’s analysis of the project’s cumulative impacts on traffic. Although the analysis was not based on “[a] list of past, present, and probable future projects producing related or cumulative impacts” on traffic conditions (Guidelines, § 15130, subd. (b)(1)(A)), it complied with subdivision (b)(1)(B) of section 15130 of the Guidelines because it was based on “[a] summary of projections contained in and ... [a] prior environmental document” which has been adopted or certified, which described or evaluated regional or areawide conditions contributing to the cumulative impact.

The EIR analyzed the project’s cumulative impacts on traffic conditions using the same database and computer modeling system used in developing the San Bernardino County Congestion Management Program (CMP), an environmental document previously adopted by the San Bernardino County Associated Governments (SANBAG). (See § 65089.) Under the Planning and Zoning Law (§ 65000 et seq.), a “congestion management program” must be “developed, adopted, and updated biennially ... for every county that includes an urbanized area,” and must include “every city and the county” (§ 65089, subd. (a)). A CMP must include (1) a “program to analyze the impacts of land use decisions made by local jurisdictions on regional transportation systems,” and (2) “a uniform data base on traffic impacts for use in a countywide transportation computer model . . . that will be used by local jurisdictions to determine the quantitative impacts of development on the circulation system . . . .” (§ 65089, subds. (b)(4), (c).)

In 1992, SANBAG adopted a CMP for San Bernardino County and updated the CMP biennially, including in 2005 before the draft EIR was prepared in May 2007. SANBAG developed the CMP, together with a “uniform data base on traffic impacts for use in a countywide transportation computer model,” in consultation with a technical advisory committee composed of planning and engineering staff from, among others, SANBAG member cities and the Southern California Association of Governments (SCAG). (§ 65089, subd. (c).) SCAG is the regional agency responsible for preparing and adopting a regional transportation plan that includes San Bernardino County. (§ 65080.)

The EIR’s projections of the project’s cumulative impacts on traffic was based on “the Rialto Wal-Mart Supercenter Draft Traffic Study (Traffic Study),” dated March 26, 2007, prepared by Meyer, Mohaddes Associates (MMA), and attached to the EIR as appendix No. 15.3. The EIR explains that because the CMP requires “an analysis of existing conditions, project opening year conditions (Year 2008) and long-term horizon year conditions (currently 2030),” the Traffic Study (Rialto Wal-Mart Supercenter Draft Traffic Study) analyzed traffic conditions (1) in 2005, (2) in 2008 with and without project conditions, and (3) in 2030 with and without project conditions. Importantly, these projected traffic conditions were calculated using the same computer model used in the CMP and maintained by SC AG, namely, the “Comprehensive Transportation Plan (CTP) travel demand model.”

Rialto Citizens argues that “using the standards” or the same computer model used in the CMP to project countywide traffic conditions “is not the same as relying on a ‘summary of projections’ ” contained in the CMP. (See Guidelines, § 15130, subd. (b)(1)(B).) We disagree. Effectively, the Comprehensive Transportation Plan (CTP) travel demand model included “a summary of projections” of traffic conditions in San Bernardino County. SANBAG, the agency responsible for developing, adopting, and updating the CMP, was required to “develop a uniform data base on traffic impacts for use in a countywide transportation computer model. . . .” (§ 65089, subds. (a), (c).)

Moreover, the EIR shows that this uniform data base included updated data on traffic conditions in San Bernardino County. The EIR explains that year 2030 traffic volumes were projected using a “refined version” of the CTP travel demand model, “developed by MMA in consultation with SCAG and Caltrans for use in the analysis of the proposed Duncan Canyon Road interchange on Interstate 15 ... in the City of Fontana .... This version of the model was used because it incorporates additional network detail in the Cities of Rialto and Fontana, as well as a representation of existing conditions, including updated socioeconomic data and the extension of the State Route 210 freeway to its current terminus. The 2030 network of the CTP model was modified by the addition of a new traffic analysis zone to represent the proposed project. Therefore, the 2030 model run represents ‘with project’ conditions.” (Italics added.) Year 2030 conditions without project conditions were projected “by subtracting project turning movements at each intersection.” Thus the uniform data base used to project the project’s cumulative impact on traffic conditions necessarily included “[a] summary of projections” of areawide traffic conditions used in the CMR a previously adopted environmental document. (Guidelines, § 15130, subd. (b)(1)(B).)

D. The EIR Adequately Explained the Geographic Scope of Its Analysis of the Project’s Cumulative Impacts on Air Quality

In the trial court, Rialto Citizens claimed that the EIR’s analysis of the project’s cumulative impacts on air quality was inadequate because it did not include “a substantial contributor to air pollution in the area: namely, the BNSF Railway yard,” and, in excluding the railway yard, the EIR understated the severity of the cumulative impact. The trial court ruled that the analysis was inadequate because the EIR did not explain why it used “a 5 mile limit... for the air quality cumulative analysis.” The Guidelines provide that “[ljead agencies should define the geographic scope of the area affected by the cumulative effect and provide a reasonable explanation for the geographic limitation used.” (Guidelines, § 15130, subd. (b)(3), italics added.)

Wal-Mart claims the EIR did not use a five-mile limit in analyzing cumulative air quality impact, and that its analysis of the impact was adequate. Wal-Mart is correct on both points. As we explain, the EIR concluded that the project would have a significant cumulative impact on air quality based solely on the emissions from the project, and its analysis of this cumulative impact was adequate.

Table No. 4-1 of the EIR consists of a “cumulative projects list.” The EIR explains that the cumulative projects list “identifies related projects and other possible development in the area determined as having the potential to interact with the proposed project to the extent that a significant cumulative effect may occur. . . . The resulting related projects primarily include those determined to be at least indirectly capable of interacting with the [project].”

There are a total of 72 projects on the cumulative projects list; 65 are within three miles of the project site and the other seven are between three and five miles from the project site. The list includes an 82,400-square-foot locomotive repair facility, a 49,050-square-foot