Sierra Club v. Tahoe Regional Planning Agency (916 F. Supp. 2d 1098, 2013)

MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

WILLIAM B. SHUBB, District Judge.

Plaintiffs Sierra Club and Friends of the West Shore (“FOWS”) brought this action against defendants the County of Placer, the Board of Supervisors of the County of Placer (“County”), the Tahoe Regional Planning Agency (“TRPA”), Homewood Village Resorts, LLC, and JMA Ventures, LLC (collectively, “defendants”), alleging violations of the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000-21176 and the Tahoe Regional Planning Compact (“Compact”), Pub. L. No. 96-551, 94 Stat. 3233 (1980); Cal. Gov’t Code § 66801 et seq.; Nev.Rev. Stat. § 277.200 et seq. Plaintiffs’ allegations pertain to TRPA and the County’s approval of the Homewood Ski Area Master Plan (the “Project”), which allows for the expansion of the Homewood Mountain Resort in Homewood, California. Presently before the court are plaintiffs’ motion for summary judgment and defendants’ cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.

I. Introduction and Facts

A. Compact and TRPA’s Regulation

The Lake Tahoe Region (“Region”) is located on the California-Nevada border and comprises about 501 square miles, including the waters of Lake Tahoe, which cover 191 square miles. (RP at i.) The primary focus of environmental regulation in the Region is to protect the exceptional water clarity of the lake. Id. Homewood is a town on the lake’s west shore and lies within Placer County, California.

In 1968, California and Nevada entered into the Compact, which was approved by Congress in 1969. League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 739 F.Supp.2d 1260, 1265 (E.D.Cal.2010) {“League") (Karlton, J.), affd in part, vacated in part, remanded, 469 Fed.Appx. 621 (9th Cir.2012). The Compact guides all planning and development in the Region and was amended in 1980 to direct TRPA, the agency it created, “to establish environmental threshold carrying capacities” for the Region. (Compl. Ex. A (“Compact”) art. 1(b) (Docket No. 1).) The “environmental threshold carrying capacities” are environmental standards “necessary to maintain a significant scenic, recreational, educational, scientific or natural value of the region or to maintain public health and safety within the region” and “shall include but not be limited to standards for air quality, water quality, soil conservation, vegetation preservation and noise.” {Id. art. II(i).) TRPA has adopted thirty-six threshold standards, including standards for water quality, air quality, noise, and scenic quality. {See Administrative Record (“AR”) 12879 (TRPA Resolution adopting thresholds).)

The Compact also required TRPA “to adopt and enforce a regional plan and implementing ordinances which will achieve and maintain [the thresholds] while providing opportunities for orderly growth and development consistent with such capacities.” (Compact art. 1(b).) In 1987, TRPA adopted the Regional Plan, which describes the needs and goals of the Region and provides policies to guide action affecting the Region’s resources. (RP at Hi.) The Regional Plan is implemented by the Code of Ordinances and the Rules of Procedure promulgated by TRPA. See Comm, for Reasonable Regulation of Lake Tahoe v. Tahoe Reg’l Planning Agency, 311 F.Supp.2d 972, 979-80 (D.Nev.2004).

TRPA also has regulatory authority over specific projects. For each project that may have a significant effect on the environment, TRPA must adopt findings that the project will not interfere with implementation of the Regional Plan or cause the thresholds to be exceeded. (Compact art. V(g).) TRPA must also prepare an environmental impact statement (“EIS”) for the project, similar to that required by CEQA, identifying the project’s significant environmental impacts, the impacts that cannot be avoided if the project is implemented, alternatives to the project, and mitigation measures that must be implemented to assure meeting the standards of the region, among other things. {Id. art. VII(a)(2)(A)-(D).)

Changes to TRPA’s implementing documents require particular findings. When TRPA amends the Regional Plan, it must find “that the Regional Plan, as amended, achieves and maintains the thresholds.” (Park Decl. Ex. 1 (“Code”) § 6.4 (Docket No. 40).) Likewise, when it amends the Code, it must find that “the Regional Plan, and all of its elements, as implemented through the Code, Rules, and other TRPA plans and programs, as amended, achieves and maintains the thresholds.” Id. § 6.5.

B. Homewood Project

Homewood was developed in about 1900 as a vacation resort. (AR 3105.) It is mainly a residential town, with only 906 residents in 2004. {Id. at 3005, 3119.) The Homewood Mountain Resort (“Resort” or “HMR”) opened in 1962 and is the largest tourism feature in the town. {Id. at 3119,12733.) It has four main chairlifts and two distinct lodge areas, the South Base and North Base. {Id. at 7351.) It is primarily a “day ski” area because it has no overnight accommodations. (Id. at 40478.)

In 2006 and 2007, the owners of the resort, JMA Ventures and Homewood Village Resorts LLC (collectively, “JMA”), proposed the Project, a planned expansion of the Resort from 25,000 square feet to over one million square feet that would add 325 new residential and tourist accommodation units to the surrounding Home-wood community. (Id. at 2691-92, 3481.) The Project is intended to update the Resort’s ski facilities and bring new development rights, including commercial floor area, residential units, and tourist accommodation units, to the Project area, which currently has no residential or tourist accommodation units. (Id. at 3119.) The Resort is currently operating at a loss, and the Project is also designed to generate enough revenue to fund the environmental benefits the Project will bring and ensure its continued economic viability. (Id. at 2749,18968.)

In February 2008, TRPA’s Governing Board accepted the Project into the “Community Enhancement Program” (“CEP”), which was created to provide incentives to developers to create “mixed-use, transit-orientated development” in the Region. (Id. at 7351.) It grants projects development rights — bonus commercial floor area allocations and bonus tourist accommodation units (“TAUs”) — from a pool reserved for projects that provide a “substantial environmental benefit” or “mitigation in excess” of legal requirements. See Code §§ 33.3.D(3)(C)(ii), 33.4.A(3). For the Project to participate in this program, TRPA adopted a resolution listing the minimum requirements it must meet. (AR 2680.) The benefits the Project will provide include water quality improvements, retirement of sensitive lands, and an overall reduction in land coverage. (Id. at 3920; see also AR 2977-79 (noting other Project benefits).)

To meet the environmental review requirements of both CEQA and the Compact, the County and TRPA jointly issued the draft environmental impact report-environmental impact statement (“EIR-EIS”) in January 2011. (Id. at 239.) The draft studied the proposed Project and five alternatives, including a “reduced project alternative,” which proposed a fifteen percent reduction in development for a total of 297 residential and tourist accommodation units. (Id. at 268-70.) The proposed project required several land-use planning amendments to the Regional Plan, Code, and Plan Area Statements (“PASs”). These amendments are considered part of the proposed project and were analyzed during the Project’s environmental review. (See id. at 3926.) They include amendments to the Regional Plan and to the Code to remove the requirement that additional TAUs in a ski area be allocated only under an adopted community plan, (id. at 36-61); amendments to several PASs for the Resort to expand its urban boundary, (id. at 358, 540-41); and additional Code amendments to allow additional height and groundwater interception for below-grade parking in the proposed project’s areas, (id. at 360-61).

In October 2011, TRPA and the County issued the final EIR-EIS. (Id. at 2675-7333.) It modified the proposed project, “Alternative 1A,” to meet concerns raised during the comment period. (Id. at 2756.) The same amendments remained necessary. (Id. at 2788-89.) The EIR-EIS found that neither the reduced alternative (Alternative 6), nor any smaller project, would produce enough revenue to support the Project’s proposed environmental improvements and ensure the continued viability of the ski operations. (Id. at 326.) Later in October, the County approved the Project and the EIR-EIS. (Id. at 9236, 9245.) Plaintiffs appealed both. (Id. at 8311.) The County denied the appeal and certified the EIR-EIS. (Id. at 41-42.) On December 14, 2011, TRPA held a hearing on the Project. (TRPA Administrative Record (“TAR”) at 205-07.) It certified the EIR-EIS, approved the amendments, and approved the Project. (Id. at 1017-21.)

II. Legal Standard

Although the parties bring cross-motions for summary judgment, this is a record-review case and there are no material facts in dispute. The ordinary standards for summary judgment are therefore not implicated. League, 739 F.Supp.2d at 1267. Instead, the court must determine whether either party is entitled to judgment as a matter of law. Id.

A. CEQA

CEQA is “a comprehensive scheme designed to provide long-term protection to the environment.” Napa Citizens for Honest Gov’t v. Napa Cnty. Bd. of Supervisors, 91 Cal.App.4th 342, 355, 110 Cal. Rptr.2d 579 (2001). Its provisions are fleshed out by the “Guidelines” set forth in the California Code of Regulations, title 14, section 15000 et seq. (“Guidelines”). CEQA is to be interpreted in a manner that gives the fullest possible protection to the environment within the scope of the statutory language. Citizens of Goleta Valley v. Bd. of Supervisors, 52 Cal.3d 553, 563, 276 Cal.Rptr. 410, 801 P.2d 1161 (1990) (“Goleta I”). The environmental impact report (“EIR”) is described as the “heart of CEQA;” its purpose is to inform the public and government officials of the environmental consequences of decisions before they are made. Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal., 47 Cal.3d 376, 392, 253 Cal.Rptr. 426, 764 P.2d 278 (1988) (“Laurel Heights”). It requires project proponents to “identify ways that environmental damage can be avoided or significantly reduced” and assists to “[p]revent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible.” Guidelines § 15002(a)(2)-(3).

Under CEQA, the court’s review is generally limited to ascertaining whether the public agency abused its discretion by not proceeding as required by law or by making a determination that is not supported by substantial evidence. Cal. Pub. Res. Code §§ 21168, 21168.5; Californians for Alternatives to Toxics v. Dep’t of Food & Agric., 136 Cal.App.4th 1, 12, 38 Cal. Rptr.3d 638 (1st Dist.2005) (“CATS”). Judicial review of these two kinds of error is very different. Cal. Native Plant Soc. v. City of Santa Cruz, 177 Cal.App.4th 957, 984, 99 Cal.Rptr.3d 572 (6th Dist.2009). Thus, “a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.” Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal.4th 412, 435, 53 Cal.Rptr.3d 821, 150 P.3d 709 (2007) (“Vineyard Area Citizens”).

An agency fails to proceed in a manner required by law when it fails to comply with the informational requirements of CEQA. CATS, 136 Cal.App.4th at 12, 38 Cal.Rptr.3d 638. The court determines de novo whether the agency used the correct procedures in taking the challenged action. Cal. Native Plant Soc., 177 Cal.App.4th at 984, 99 Cal.Rptr.3d 572. “Substantial evidence” is “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” Guidelines § 15384(a). Under this standard, the court “aceord[s] greater deference to the agency’s substantive factual conclusions.” Vineyard Area Citizens, 40 Cal.4th at 435, 53 Cal.Rptr .3d 821, 150 P.3d 709. It “ ‘resolve[s] reasonable doubts in favor of the administrative finding and decision.’ ” Laurel Heights, 47 Cal.3d at 393, 253 Cal.Rptr. 426, 764 P.2d 278 (quoting Topanga Ass’n for a Scenic Cmty. v. Cnty. of Los Angeles, 11 Cal.3d 506, 514, 113 Cal.Rptr. 836, 522 P.2d 12 (1974)). It is not for the court to determine the correctness of the EIR’s environmental conclusions, but rather only its sufficiency as an informative document. Laurel Heights, 47 Cal.3d at 392, 253 Cal. Rptr. 426, 764 P.2d 278. Thus, the court cannot overturn an agency’s approval of an EIR because an opposite conclusion would have been equally or even more reasonable. CATS, 136 Cal.App.4th at 12, 38 Cal.Rptr.3d 638.

“An EIR will be found legally inadequate — and subject to independent review for procedural error — where it omits information that is both required by CEQA and necessary to informed discussion.” Cal. Native Plant Soc., 177 Cal.App.4th at 986, 99 Cal.Rptr.3d 572. In contrast, the usual dispute will “concern the amount or type of information contained in the EIR, the scope of the analysis, or the choice of methodology.” Id. This is a factual determination that receives substantial evidence review. San Joaquin Raptor Rescue Ctr. v. Cnty. of Merced, 149 Cal.App.4th 645, 654, 57 Cal.Rptr.3d 663 (5th Dist.2007).

CEQA’s exhaustion requirement is characterized by California courts as jurisdictional. Cal. Native Plant Soc. v. City of Rancho Cordova, 172 Cal.App.4th 603, 615, 91 Cal.Rptr.3d 571 (3d Dist.2009). Plaintiffs may not raise an issue in litigation unless it was first presented to the agency. Cal. Pub. Res. Code § 21177(a). “[T]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.” Tracy First v. City of Tracy, 177 Cal.App.4th 912, 926, 99 Cal.Rptr.3d 621 (3d Dist.2009) (alteration in original) (internal quotation marks and citation omitted). The burden is on plaintiffs to show the issues they raise before the court were first raised before the agency. Id.

B. Compact

Under the Compact, the applicable standard of review for an agency’s adjudicatory act or decision to approve or disapprove a project is “prejudicial abuse of discretion,” which is established when “the agency has not proceeded in manner required by law or if the act or decision of the agency was not supported by substantial evidence in light of the whole record.” (Compact art. VI(j)(5).) In making this determination, the court should “not exercise its independent judgment on evidence” but rather “only determine whether the act or decision was supported by substantial evidence.” (Id.) The applicable standard of review for a legislative act or decision of the agency extends only to whether the act or decision was arbitrary, capricious, or without substantial evidence or whether the agency failed to proceed in a manner required by law. (Id.)

The Compact does not contain a statutory issue-exhaustion requirement. It provides that “any aggrieved person may file an action” that “alleg[es] noncompliance with the provisions of this compact.” (Id. art.- VI(j)(3).) An “ ‘aggrieved person’ means any person who has appeared ... before the agency at an appropriate administrative hearing to register objection to the action which is being challenged ....” (Id.) Cases finding a statutory issue-exhaustion requirement rely on language that clearly demands objection to a particular issue, rather than to the challenged action. See, e.g., Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982) (finding an issue-exhaustion requirement where statutory language provided that “‘[n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances’ ” (quoting 29 U.S.C. § 160(e))); Wash. Ass’nfor Television & Children v. FCC, 712 F.2d 677, 681 (D.C.Cir.1983) (locating issue-exhaustion requirement in statutory language providing that “ ‘[t]he filing of a petition for rehearing shall not be a condition precedent to judicial review of [an FCC decision] except where the party seeking such review ... relies on questions of law or fact upon which the Commission ... has been afforded no opportunity to pass’ ” (quoting 47 U.S.C. § 405 (second alteration in original))); see also id. at 681 n. 6 (collecting statutes). The Compact’s provision does not use words or phrases comparable to “issue” or “grounds for objection,” which would indicate that the statute requires objection to a particular issue before the agency if that issue is to be raised during litigation.

Instead, the Compact’s provision regarding aggrieved persons sets limitations on who may challenge TRPA’s decisions under the statute. See Dir., .Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 126, 115 S.Ct. 1278, 131 L.Ed.2d 160 (1995) (“Newport News”) (“The phrase ‘person adversely affected or aggrieved’ is a term of art used in many statutes to designate those who have standing to challenge or appeal an agency decision, within the agency or before the courts.”). The judicial review provision of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, entitles “[a] person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute” to judicial review. “In that provision, the qualification ‘within the meaning of a relevant statute’ is not an addition to what ‘adversely affected or aggrieved’ alone conveys; but is rather an acknowledgment of the fact that what constitutes adverse effect or aggrievement varies from statute to statute.” Newport News, 514 U.S. at 126, 115 S.Ct. 1278. The Compact appears to contemplate the model proposed by the APA; by defining “aggrieved person,” it delineates who has standing under the statute.

Even where administrative issue exhaustion is not statutorily required, a court may apply a “judicially imposed issue-exhaustion requirement.” Sims v. Apfel, 530 U.S. 103, 108, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). Whether a court should impose such a requirement depends on the extent to which the particular administrative proceeding is analogous to normal adversarial litigation. Id. at 109-10, 120 S.Ct. 2080. However, even though there is no statutory issue exhaustion requirement in the National Environmental Policy Act (“NEPA”) and it does not provide for any procedures akin to an adversarial proceeding, the Supreme Court has imposed an issue-exhaustion requirement for NEPA plaintiffs. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.2010) (“A party forfeits arguments that are not raised during the administrative process.”); see also High Sierra Hikers Ass’n v. U.S. Forest Serv., 436 F.Supp.2d 1117, 1148 (E.D.CaI.2006) (explaining that Sims’ s test for applying a judicially imposed issue-exhaustion requirement has been narrowed by Public Citizen). As the Court explained, “[p]er-sons challenging an agency’s compliance with NEPA must ‘structure their participation so that it ... alerts the agency to the [parties’] position and contentions,’ in order to allow the agency to give the issue meaningful consideration.” Public Citizen, 541 U.S. at 764, 124 S.Ct. 2204 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (alterations in original)).

The purpose of requiring issue exhaustion is to allow “administrative agencies to utilize their expertise, correct any mistakes, and avoid unnecessary judicial intervention in the [administrative] process.” Lands Council, 629 F.3d at 1076. As explained, the Compact, like NEPA, does not have an issue-exhaustion provision. However, as in the NEPA context, the Compact requires the preparation of an EIS, which facilitates public comments and responses by the agency. The EIR-EIS process here provided plaintiffs with an opportunity to raise the issues they considered relevant and allowed TRPA to give “meaningful consideration” to those issues. There was an opportunity for TRPA to use its expertise, correct its mistakes, and avoid otiose judicial intervention. Because the Compact’s EIS requirements provide for public participation and agency response to the same extent as does NEPA, and allow for the purposes of issue exhaustion to be met, the court finds that an issue-exhaustion requirement applies.

III. Amendments to the Regional Plan and Code

A. Legal Standard

Under Article VI(j)(5) of the Compact, the scope of judicial review of legislative acts or decisions by TRPA extends only to questions of whether the act or decision was “arbitrary, capricious or lacking substantial evidentiary support or whether the agency has failed to proceed in a manner required by law.” Both parties draw on cases interpreting the scope of the court’s review under the APA to explain the extent of the court’s review under the Compact. This is reasonable given the similar language of the judicial review sections of the APA and the Compact. See 5 U.S.C. § 706(2)(A), (E); League, 739 F.Supp.2d at 1267 (noting that the parties characterize the standard of review as essentially the same as that used under the APA and citing APA caselaw).

An agency’s legislative action is considered arbitrary and capricious when the agency relied “on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Under this standard, the court’s scope of review is narrow and it must not “substitute its judgment for that of the agency.” Id.

The parties dispute whether the prohibition against agency “ad hocery” also applies only to agency adjudicative actions or also to TRPA’s legislative actions. In Ramaprakash v. FAA, 346 F.3d 1121 (D.C.Cir.2003), the court explained that “the core concern underlying the prohibition of arbitrary or capricious agency action is that agency ‘ad hocery’ is impermissible.” Id. at 1130 (internal quotation marks and citation omitted). It held that the National Transportation Safety Board (“NTSB”) engaged in such ad hocery when it departed from its precedent without any reasoned explanation in deciding whether the Federal Aviation Administration could suspend Ramaprakash’s pilot certifícate. Id. at 1125. Most consequentially, the NTSB abandoned its decades-old requirement of prosecutorial diligence in investigating possible violations of the Federal Aviation Regulations. Id. at 1127-28. It also indicated that whether the departures announced in Ramaprakash’s case would apply in the future would depend on the facts of specific cases. Id. at 1130. The court expressed dismay at the resulting uncertainty, concluding:

We have it on high authority that “the tendency of the law must always be to narrow the field of uncertainty.” O.W. Holmes, The Common Law 127 (1881). The Board’s unexplained departures from precedent do the opposite. “[WJhere an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.”

Id. at 1130 (second citation omitted).

Defendants attempt to cordon off “ad hocery” as a specific restraint on agencies only in their adjudicative actions, but the court does not give the phrase such talismanic significance. The challenge in Ramaprakash to the policy change evident in the NTSB’s adjudicatory determination was brought under § 706(2)(A) of the APA, which prohibits arbitrary and capricious action. Id. at 1124. State Farm interpreted the same provision and required a comparable explanation for an agency’s legislative act that marked a change in course: “a reasoned analysis for the change.” 463 U.S. at 42, 103 S.Ct. 2856 (reviewing agency’s promulgation of an informal rule); see also Redding Ranchería v. Salazar, 881 F.Supp.2d 1104, 1119-20 (9th Cir.2012) (explaining that an agency changing course in its regulations must provide an explanation for the change). Ramaprakash and State Farm reviewed different kinds of agency actions, but the point from both decisions is the same: agencies should provide reasonable explanations when they embark on policy change. If there is any difference between an agency’s failure to explain change under Ramaprakash and State Farm, it would seem to be only that an agency engaging in ad hocery commits a more blatant violation of the prohibition against arbitrary and capricious agency action such that the course its policy will follow is wholly unpredictable.

The similarity between the standards is borne out by subsequent caselaw. In American Federation of Labor v. Chertoff, 552 F.Supp.2d 999 (N.D.Cal.2007), the court considered whether the Department of Homeland Security acted arbitrarily and capriciously in promulgating a final rule that departed from its historical position regarding the knowledge imputed to employers who receive no-match letters from the Social Security Administration (“SSA”) indicating that an employee’s name and Social Security Number on a wage form do not match the SSA’s own records. Id. at 1009. Although it did not use the phrase “ad hocery,” the court quoted Ramaprakash for the proposition that:

[Ajgency action is arbitrary and capricious if it departs from agency precedent without explanation. Agencies are free to change course as their expertise and experience may suggest or require, but when they do so they must provide a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.

Id. at 1009 (quoting Ramaprakash, 346 F.3d at 1124-25). Even though Chertoff considered an agency’s legislative action, it relied on Ramaprakash without qualification, affirming the court’s determination that there is no significant difference between what State Farm requires and “ad hocery” prohibits. Assuming, however, that some heightened standard under Ramaprakash applies, for the reasons explained below, the court finds that TRPA did not violate even this.

B. TRPA’s Adoption of Amendments to Expand Access to TAUs

Prior to constructing new tourist accommodations, such as hotels, the Regional Plan and Code require that developers first receive an allocation of TAUs. (RP at II — 5); Code § 33.4.A. Before the Project’s approval, the Regional Plan required that projects “be permitted additional [TAUs] as specified within a community plan,” (RP at II — 5), and that “[n]o bonus [TAUs] shall be allowed for projects outside adopted community plans,” (id. at VII — 15; see also id. at II — 5 (“Based on demonstrated need, projects may be permitted additional [TAUs] as specified within a community plan.”)). Likewise, the Code required that bonus TAUs be limited to “projects” and “parcels” within adopted community plans. Code §§ 33.4.A. (3), 35.3. Additionally, most of the Project is located in PAS 157, which requires that “[a]ny new or additional commercial uses shall be permitted only pursuant to an adopted [c]ommunity [p]lan.” (AR 2962.)

PASs guide planning by setting the land-use requirements for the different areas of the Region. (RP at 1-5.) Certain areas within the Region are designated by the Regional Plan as eligible for community plans, which may be adopted to supersede a PAS. (Id.) Adoption of a community plan is not mandatory, (id. at II — 6), but may commence “as a result of a local government request, or by Agency initiative in recognition of local interest,” (id. at II — 7); see also Code § 14.6.A(1). Among other elements, community plans must include an “assessment of needs, opportunities, limitations, and existing features” and a “statement of goals and objectives for the area.” (RP at II-7.) “It is [TRPA’s] goal that each proposed community plan ... will have addressed the needs and concerns of the community ...” (Id. at II-8.) A “master plan” is another kind of detailed plan that is intended “to augment [PASs] or community plans” and “to provide more detailed planning to ensure that projects and activities are consistent with the Goals and Policies [of the Regional Plan], the [PASs] or community plans, and the Code. Code § 16.0. It may also replace the PAS. (RP at 1-5.)

Homewood was an area identified for community planning and part of the Project area is designated as “a preliminary community plan area,” meaning it is eligible for a community plan. (See AR 2964, 19063, 19072.) Homewood, however, does not currently have a community plan, and at the time the Project was proposed, some commentators requested a plan be adopted. (Id. at 1471, 1479, 1531 (commenting on Notice of Preparation of Draft EIR-EIS); TAR 9962.) Instead of preparing a community plan for the area, TRPA amended the Regional Plan and Code to allow allocation of additional TAUs under either a community plan “or a ski area master plan,” as well as Plan Area 157 to allow new or additional commercial uses pursuant to either type of plan (collectively, the “Amendments”). (See id. at 224, 623, 644-45.)

Plaintiffs argue that the “new alternative” for allocating TAUs and commercial floor area through the ski area master plan process fails to satisfy the objectives of the Compact and Regional Plan. (Pis.’ Mem. in Supp. of Summ. J. (“Pis.’ Mem.”) at 14:24 (Docket No. 40-1).) They view the Compact and Regional Plan as mandating regional planning to take into account the Region’s needs “as a whole” and requiring consideration of community needs before approval of additional development. They argue that because master plans are not designed to be responsive to the Region’s and community’s needs, TRPA’s adoption of the Amendments marks a departure from TRPA’s prior practice. In other words, TRPA has departed from its former policy in two ways: (1) the Region’s and community’s needs are no longer considered in land-use planning, despite the Compact and Regional Plan’s clear intent that they be considered and (2) those needs are no longer determined through the community planning process. (Pis.’ Reply 3:5-10 (Docket 55-1).) Finally, plaintiffs argue that TRPA departed from that practice without explaining why it changed its course; that is, “without any rational justification.” (Id. at 3:6-7.)

Initially, defendants dispute that TRPA changed course or reversed its policy such that an explanation of the change is required. A reversal would more clearly be before the court if TRPA had approved amendments to prohibit allocation of TAUs through community plans and instead distribute them only through the ski area master plan process, or if it had previously found that ski area master plans should not be used to allocate TAUs. TRPA instead suggests that it merely expanded incentives that it previously found to be environmentally beneficial. Cf. Redding Ranchería, 881 F.Supp.2d at 1119-20 (analyzing agency’s decision to apply temporal limitation as a bright-line rule rather than on a case-by-case basis as a change in course).

In setting out the required findings for the Amendments, TRPA explained that the amendments to the Regional Plan are consistent with the existing Regional Plan because they “will facilitate implementation of the Regional Plan, in terms of both threshold attainment and orderly growth and development, by providing incentives for an economically, environmentally and socially sustainable project that results in threshold-related improvements .... ” (TAR 678.) It stated further that:

The amendments do not increase the fixed number of bonus units originally allocated in the Regional Plan. Further, just as is required for projects in Community Plans, projects in Ski Area Master Plans proposing to use bonus units must demonstrate substantial environmental benefits and provide a match of existing tourist accommodation units through a transfer pursuant to Code Chapter 34. As such, the proposed amendments expand incentives already embodied in the Regional Plan to Ski Area Master Plans to realize environmental gain.

(Id. at 678.) There is substantial evidence to support TRPA’s conclusion that the benefits it ascribes to the Amendments will accrue. For example, TRPA explains that the Project will bring “threshold-related improvements to water quality, SEZ, soil conservation, recreation, air quality, transportation and scenic quality.” (Id. at 678.)

Even assuming the Amendments mark a change in course, TRPA has provided an adequate explanation for any shift. TRPA states that it expanded the means of allocating TAUs to provide incentives for a project that brings various environmental benefits and will facilitate implementation of the Regional Plan. It also explained that by allowing TAUs to be allocated in an additional way, projects that bring environmental benefits will be further incentivized because they can now receive TAUs through either a ski area master plan or a community plan. TRPA therefore adequately acknowledged the “change” the Amendments mark (expanding how TAUs can be allocated) and explained why it was making that change.

For the same reasons, the court also rejects the argument that TRPA’s only rationale for the Amendments was to “ ‘enable]’ Project implementation” and that TRPA cannot justify Regional Plan or Code amendments simply to accommodate a project. (Pis.’ Mem. at 16:1-2.) The court acknowledges plaintiffs’ concern that approval of specific projects should not drive broader land-use planning. But TRPA did provide a reasonable basis for adopting the Amendments and, assuming it must also give an explanation as to why the Amendments will be beneficial going forward, its explanation did so.

Plaintiffs cite Western States Petroleum Ass’n v. EPA 87 F.3d 280 (9th Cir.1996), for the proposition that an agency changing its course must supply a reasoned analysis for the change. There, the EPA rejected Washington’s proposed permitting program for emissions because it would have exempted insignificant emissions units (“IEUs”) from monitoring, reporting, and record-keeping requirements set by EPA regulations. Id. at 283. The court held that the EPA abused its discretion because these grounds for rejection were in direct contradiction to its prior precedent — on eight other occasions — approving programs that omitted IEUs from those requirements. Id. at 285. While the proposition is not mistaken, the difference between the EPA’s unexplained reversal stands in stark contrast to the reasoned explanation provided by TRPA for its shift in practice. See also Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 690 (9th Cir.2007) (requiring reasoned analysis for departure from longstanding practice)

. It is also clear that TRPA has not made a wholesale departure from any policy of community participation. Plaintiffs argue that circumventing the community planning process “foreordained a Project that met JMA’s private objectives” to construct enough residential and tourist accommodation units to generate sufficient revenues to ensure the continued viability of the ski operations. (Pis.’ Reply at 10:15.) However, defendants explain that JMA created an outreach program that TRPA concluded provided the public with an adequate means to shape the Project and determine the Project’s needs. (See AR 3918-19; TAR 744.) While the level of community participation in preparing the ski area master plan did not have the same depth as would have been required for a community plan, it was not so scant as to be deemed nonexistent or to substantiate claims that TRPA completely reversed its policy course.

Finally, plaintiffs’ arguments are misguided to the extent that they imply that TRPA should not have amended the Regional Plan and Code to allow the ski area master plans to be used for some of the same purposes as community plans because the latter are a better method of meeting those purposes. It is the responsibility of TRPA to balance benefits and harms and make the policy choice it believes to be best. Cf. Redding Ranchería, 881 F.Supp.2d at 1120 (“But of course the Tribe is not the one who determines whether the Regulations were a necessary or advisable means of implementing the ambiguous Restored Lands Exception. Neither is this Court.... Congress entrusted that determination to Interior.”). TRPA provided a reasonable explanation for the Amendments; this is all the Compact requires. Accordingly, the court finds that TRPA’s adoption of amendments to the Regional Plan, Code, and PASs to allow for allocation of TAUs through the ski area master plan process did not violate the Compact.

C. Code Amendments’ Consistency with the Code

Plaintiffs also argue that the amendments to the Code could not be approved because they are not consistent with the Code. See Code § 6.3.A(1) (requiring TRPA to find that new Code amendments are “consistent with, and will not adversely affect the implementation of the Regional Plan, including ... the Code”). Plaintiffs locate a discrepancy in that although the new Code amendments alter several Code provisions to allow allocation of TAUs through ski area master plans, Code subsection 33.4.A(3)(d) still requires that the “[distribution of units within the community plan shall be pursuant to the provisions of the adopted community plan and ... [a] demonstration of need for additional units is shown pursuant to Chapter 14.” Plaintiffs argue that Chapter 14 provides a detailed process to determine and respond to community needs and that because the ski area master plan does not even require a showing of “demonstrated need” for additional TAUs, much less implicate the Chapter 14 process, that the amendments are inconsistent with the Code.

The court declines to consider this argument, however, because plaintiffs failed to raise the issue during the administrative process. It is waived.

D. Role of the Amendments in Land-Use Planning

Plaintiffs argue that the Compact and Regional Plan “clearly indicate that general land-use planning, including the Plan, Code and PASs, must come before site-specific project approvals; planning and project approval must not happen simultaneously.” (Pis.’ Mem. at 16:17-19.) The court finds that plaintiffs adequately, if imperfectly, raised this argument. (See, e.g., AR 6186 (comment from Sierra Club).)

In Friends of Southeast’s Future v. Morrison, 153 F.3d 1059 (9th Cir.1998), the Ninth Circuit held that under the Forest Plan at issue, an area analysis must be conducted before a project-specific EIS, rather than concurrently. Id. at 1069. There, the plan stated that “[pjroject implementation will normally consist of detailed site planning and project design within the project locations identified through Area Analysis.” Id. at 1069 (internal quotation marks omitted) (emphasis in original). It also provided that “NEPA procedures will be followed and project-related environmental analysis will be tiered to the appropriate Area Analysis documentation.” Id. (internal quotation marks omitted) (emphasis in original).

Neither the Compact, Plan, or Code compel action in a way that parallels the strong temporal requirements in the Forest Plan. The Compact provides that “[n]o project may be approved until it is found to comply with the regional plan .... ” (Compact art. VI(b).) Likewise, the Regional Plan explains that the required planning documents, as well as the Compact, “provide the basic framework for judging the merits of individual projects.” (RP at 1-4.) Master plans are intended “to provide more detailed planning to ensure that projects and activities are consistent with the Goals and Policies, the [PASs] or community plans, and the Code.” Code § 16.0. These requirements put limitations on the context in which a project is developed, but they do not preclude consideration of their amendment at the same time a project is being developed.

Nor is the ski area master plan dependent on the broader planning documents in the same sense as the project analysis was dependent on the area analysis in the Forest Plan. The ski area master plan process is guided by those documents, but they do not require any specific analysis particular to a project before additional analysis for that project may commence. Additionally, the Compact, Plan, and PASs were in place during the Project’s development and drove the ski area master plan process, even though TRPA concluded that some alterations were appropriate to allow the Project to go forward. Cf. Goleta I, 52 Cal.3d at 573, 276 Cal.Rptr. 410, 801 P.2d 1161 (“[I]t may not be appropriate ... to disregard an otherwise reasonable alternative which requires some form of implementing legislation----Moreover, in some circumstances, an EIR may consider alternatives requiring a site-specific amendment of the general plan. However, an EIR is not ordinarily an occasion for the reconsideration or overhaul of fundamental land-use policy.”). Even though some elements of the Project conflicted with those provisions, that does not mean they did not serve the role plaintiffs deem they should have.

E. Retroactive Waiver of Noncompliance with Community Planning Requirement

Plaintiffs argue that TRPA attempted to retroactively excuse TRPA’s failure to complete a community plan. They contend that because the requirements in place at the time the Project was developed required TRPA to use the community planning process to allocate additional TAUs and commercial space, TRPA had to use the community planning process. Instead of creating a community plan, plaintiffs argue that defendants proceeded as though the community planning requirement did not exist and then waived it at the same hearing at which the Project was approved, contrary to law. Defendants, however, have asserted that plaintiffs failed to exhaust this claim. Plaintiffs provide no response and the court therefore assumes that they concede the point.

IV. Adequacy of the EIR-EIS’s Alternatives Analysis and TRPA’s and the County’s Related Findings

The Project’s objectives are five-fold. (AR 2748.) They are to: (1) construct onsite residential and tourist accommodation units to increase midweek skier visits at the resort; (2) optimize the quality of the winter ski experience and improve the year-round use of the site; (3) maintain consistency with the scale and character of Homewood, California; (4) enhance the lifestyle and property values of West Shore residents; and (5) generate sufficient revenues to support the Project’s proposed environmental and fire safety improvements, as well as the economic viability of the ski operations. (Id. at 2738-39.)

The Draft EIR-EIS considered six alternatives designed to meet some or all of these objectives. (See id. at 268-70.) The Final EIR-EIS added a seventh alternative, which is a revised version of the Project, created based on public input on the draft. (Id. at 2691-92.) Alternative 1 is the proposed project and it proposed to redevelop the North Base area, adding new mixed-use buildings and new residential units; build a lodge at the Mid-Mountain Base area and other amenities like a detached gondola terminal, a new learn-to-ski lift, and an outdoor swimming facility; and convert the South Base area to residential uses. (Id. at 2691.) The proposed project required the amendments related to TAU transfers considered in part III.A, supra, as well as amendments to the Code’s provisions on height and grading standards and to three PASs. (Id.) Alternative 1A is the revised proposed project. (Id. at 2691-92.) This alternative replaced two of the three large multi-family residential condo buildings at the South Base area with twenty-four smaller chalet buildings, reducing the total number of multifamily residential units from 99 in Alternative 1 to 95 in Alternative 1A. (Id. at 2692.)

Alternative 2 is no project and Alternative 3 is similar to the proposed project, but required no Code amendment to building height. (Id.) Alternative 4 proposed to close the ski resort and put in estate residential lots and one commercial lot; it required an amendment to a PAS. (Id.) Alternative 5 reduced the size of the Project area, but still required amendments to the Code (regarding height) and the PASs, although it did not require an amendment to change PAS boundaries and thereby expand the urban boundary of the project. (Id. at 2692-2693.) Alternative 6 is the reduced-size alternative, which proposed to reduce the number of total tourist accommodation and residential units by approximately fifteen percent (from 336 to 284 tourist accommodation and residential units). (Id. at 2693, 2750-51.)

A. Adequacy of the EIR-EIS’s Alternatives Analysis Under CEQA

CEQA recognizes that “it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects.” Cal. Pub. Res. Code § 21002. To implement this policy, CEQA requires the consideration and analysis of project alternatives that would reduce adverse environmental impacts. Mount Shasta Bioregional Ecology Ctr. v. Cnty. of Siskiyou, 210 Cal.App.4th 184, 197, 148 Cal.Rptr.3d 195 (3d Dist.2012); In re Bay-Delta Programmatic Envtl. Impact Report Coordinated Proceedings, 43 Cal.4th 1143, 1163, 77 Cal.Rptr.3d 578, 184 P.3d 709 (2008) (“In re Bay-Delta”). The court reviews the EIR-EIS’s selection of alternatives and its analysis of those alternatives to determine if they comply with CEQA’s procedural mandates and then decides whether substantial evidence supports the decisions made. Cal. Native Plant Roc., 177 Cal.App.4th at 988, 99 Cal. Rptr.3d 572.

1. No-Amendment Alternative

Plaintiffs first contend that the EIR-EIS failed to consider a reasonable range of alternatives because it did not consider any alternative that required no amendments to the Regional Plan, Code, or PASs. Requests for analysis of such an alternative were made during the scoping process. (See AR 2752-55.) Plaintiffs argue that the EIR-EIS did not provide a reasonable basis for omitting a no-amendment alternative because it only explained that “[t]here is no legal requirement that an alternative be considered” that requires no amendments. (Id. at 3923.) Second, they argue that defendants have adopted a litigation position that the EIR-EIS properly rejected a no-amendment alternative because it would not allow for overnight lodging, contrary to the Project’s objectives, which is not supported by the record.

“Generally, an agency’s selections of alternatives will be upheld as long as there is a reasonable basis for the choice it has made.” City of Maywood v. L.A. Unified Sch. Dist., 208 Cal.App.4th 362, 416, 145 Cal.Rptr.3d 567 (2d Dist.2012). Clearly, the EIR-EIS’s explanation that it is not legally required to consider a certain alternative would be inadequate standing alone because no particular alternative is legally required; the rule of reason controls the selection of alternatives. See Citizens of Goleta Valley v. Bd. of Supervisors, 197 Cal.App.3d 1167, 1177, 243 Cal. Rptr. 339 (2d Dist.1988) (“Goleta II”). However, the EIR-EIS also explains that “[a]n alternative that eliminates overnight lodging would be inconsistent with HMR’s objective to transform Homewood into an overnight destination.” (AR 3923.) Although plaintiffs protest that this explanation is not explicitly linked to a no-amendment alternative, defendants assert that it applies because the no-amendment alternative is an alternative that does not provide overnight lodging. The connection between the no-amendment alternative and overnight lodging explanation could have been clearer, but this explanation would have sufficed, if it were certain that a no-amendment alternative could not provide overnight lodging. Cf. City of Maywood, 208 Cal.App.4th at 416-18, 145 Cal. Rptr.3d 567 (finding explanation that proposed reduced-sized alternative would not comply with regulations regarding student density for high schools to be a reasonable basis for not including the alternative in the EIR).

At oral argument, the parties continued to dispute whether the no-amendment alternative could provide overnight lodging. The record shows that without any amendments to the PASs, the Project’s residential and tourist accommodation units would be placed largely in PAS 157. (See AR 2790.) Although the allowable uses in PAS 157 include bed and breakfast tourist accommodations and hotel, motel, and other transient tourist accommodation units, (id. at 2962-63), developing those uses would require the transfer of TAUs into PAS 157, (id. at 2988-89). However, because PAS 157 is not designated as a “receiving area,” such tourist lodging could not be built without an amendment to PAS 157 to make it eligible to receive TAUs from other areas. (Id.) Plaintiffs focus on PAS 159, which is such a receiving area. (Id. at 19051.) But only a very slim portion of the Project area is within PAS 159.

Defendants do not contest, however, that single-family residential units could be built in PAS 157 without amendment. The Project’s objective pertaining to overnight accommodations is to “construct[ ] ... on-site residential and tourist accommodation units.” (Id. at 2738.) A no-amendment alternative would arguably meet this objective by providing residential units. More importantly, even if the no-amendment alternative did not meet all of the Project’s objectives, that alone is an insufficient reason to reject it. See In re Bay-Delta, 43 Cal.4th at 1165, 77 Cal.Rptr.3d 578, 184 P.3d 709 (explaining that “an EIR should not exclude an alternative from detailed consideration merely because it ‘would impede to some degree the attainment of the project objectives’ ” unless it is otherwise infeasible or the lead agency has determined that it cannot meet the project’s underlying fundamental purpose (quoting Guidelines § 1516.6(b))); Watsonville Pilots Ass’n v. City of Watsonville, 183 Cal.App.4th 1059, 1088, 108 Cal. Rptr.3d 577 (6th Dist.2010) (rejecting claim that reduced development alternative did not require analysis in EIR simply because it could not satisfy every objective for the city’s new general plan). Thus, defendants have failed to articulate a reasonable basis for not evaluating a no-amendment alternative.

Although the EIR-EIS did not provide an explanation for its exclusion of a no-amendment alternative, CEQA requires only that an EIR analyze “those alternatives necessary to permit a reasoned choice.” Goleta II, 197 Cal.App.3d at 1177-78, 243 Cal.Rptr. 339. There is “no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose.” Goleta I, 52 Cal.3d at 566, 276 Cal.Rptr. 410, 801 P.2d 1161; see also Mira Mar Mobile Cmty. v. City of Oceanside, 119 Cal. App.4th 477, 487, 14 Cal.Rptr.3d 308 (4th Dist.2004) (“Mira Mar”) (“The discussion of alternatives is subject to a rule of reason ....”).

The alternatives analysis must at least “describe a range of reasonable alternatives to the project ... which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project .... ” Guidelines § 15126.6(a); see also Goleta I, 52 Cal.3d at 566, 276 Cal.Rptr. 410, 801 P.2d 1161 (requiring range of alternatives that offer substantial environmental advantages and are feasible). “Absolute perfection” is not required of the agency’s selection of alternatives; rather, the “key issue is whether the alternatives discussion encourages informed decision-making and public participation.” Cal. Oak Found, v. Regents of Univ. of Cal., 188 Cal.App.4th 227, 276, 115 Cal. Rptr.3d 631 (2010). The party disputing the adequacy of the agency’s chosen alternatives must demonstrate that “the agency failed to satisfy its burden of identifying and analyzing one or more potentially feasible alternatives.... [It] may not simply claim the agency failed to present an adequate range of alternatives and then sit back and force the agency to prove it wrong.” Mount Shasta Bioregional Ecology Ctr., 210 Cal.App.4th at 199, 148 Cal. Rptr.3d 195.

The EIR-EIS analyzed seven alternatives. No alternative, except for Alternative 2 (no project) was a no-amendment alternative. Alternative 4 required only one modification to a PAS, but it is also closed the ski resort. Plaintiffs contend that a no-amendment alternative would have allowed for consideration of a project that could avoid significant impacts by preserving the environmental protections the Regional Plan, Code, and PASs provide and also meet most of the developer’s objectives. Defendants argue that the EIR-EIS considered a reasonable range of alternatives, that a no-amendment alternative would merely fall within the range of those already analyzed in the EIR-EIS, and that the EIR-EIS did not need to analyze another alternative that did not meet the Project’s primary purpose.

To show that the range of alternatives examined in the EIR-EIS was unreasonable, plaintiffs analyze each selected alternative and conclude that only Alternative 6 is a potentially viable alternative to the Project. (See Pis.’ Reply at 15-17.) Plaintiffs note that the alternatives identified by defendants as focusing on what the Project would look like without amending the Code, Alternatives 3 and 5, actually require extensive amendments (thereby still allowing significant land-use changes) and did not offer any environmental advantages over the Project. (Id.) Plaintiffs scrutinize Alternatives 2 and 4, which required, respectively, no amendments or one amendment to a PAS, as failing to meet the Project’s objectives. (Id. at 17.)

“[Alternatives need not satisfy all project objectives, they must merely meet ‘most’ of them.” Mira Mar, 119 Cal. App.4th at 489, 14 Cal.Rptr.3d 308 (2004). Plaintiffs are correct that Alternative 4’s proposal to build estate homes did not meet most of the Project’s objectives and therefore does not contribute to a reasonable range of alternatives. However, Alternative 2, the no-project alternative, does contribute to such a range. Cf. Mount Shasta Bioregional Ecology Ctr., 210 Cal. App.4th at 199, 148 Cal.Rptr.3d 195 (EIR-EIS that analyzed only no project alternative and proposed project considered reasonable range of alternatives). And although alternatives that have the same or worse environmental impacts as the proposed project do not further CEQA’s purposes, they may be helpful in identifying which features of the proposed project are more or less environmentally friendly. Cf. id. at 490, 14 Cal.Rptr.3d 308 (explaining that alternatives that have comparable or worse impacts to the proposed project do not further CEQA’s purposes and declining to condone their inclusion in the EIR). Despite the flaws with Alternatives 3 and 5, the EIR-EIS still analyzed two alternatives that reduced the environmental impacts of the project: the no-project alternative and a reduced-size alternative.

The range of alternatives considered by the EIR-EIS is reasonable. The EIR-EIS compared and contrasted six alternatives (besides the proposed project). With this range, the public and decision makers could compare the environmental impacts of closing the Resort, reducing the size of the proposed project, and adjusting the proposed project in different ways with the proposed project’s environmental impacts. This array of alternatives “represents] enough of a variation to allow informed decision making.” Id. at 412, 145 Cal. Rptr.3d 567 (internal quotation marks omitted). And “if an EIR discusses a reasonable range of alternatives, it is not rendered deficient merely because it excludes other potential alternatives.” Id.

This range is not legally deficient because it also did not address a no-amendment alternative. Whether the EIR-EIS might have considered a no-amendment alternative depends on whether that alternative “would have been ‘capable of avoiding or substantially lessening any significant effects of the project,’ even if it ‘would impede to some degree the attainment of the project objectives.’ ” Watsonville Pilots Ass’n, 183 Cal.App.4th at 1087, 108 Cal.Rptr.3d 577 (quoting Guidelines § 15126.6(b)). Plaintiffs argue that the no-amendment alternative would have “preserved existing land-use rules” and thereby “avoided impacts by preserving the environmental protections inherent in those rules.” (Pis.’ Reply at 14:18-19.) The court agrees with plaintiffs that defendants cannot dispute that removing the physical restrictions imposed by those rules would create effects on the physical environment. Indeed, defendants noted that if they had not built the Code amendments into the Project, a significant effect would have resulted. (AR 3926); see also Citizens Ass’n for Sensible Dev. of Bishop Areav. Cnty. of Inyo, 172 Cal.App.3d 151, 175, 217 Cal.Rptr. 893 (4th Dist.1985) (“It is true that a project would normally be considered to have a significant effect on the environment if it conflicts with the adopted environmental plans and goals of the community where it is located.”).

Under CEQA, however, a court cannot require an agency to consider an alternative merely because plaintiffs can show that it is environmentally superior in certain aspects. Instead, the alternative must avoid or substantially limit a significant and unavoidable effect of the project. After mitigation, the Project’s impacts are reduced to a less than significant level with four exceptions. These include impacts on traffic at two already congested locales and significant climate change impacts. (See AR 2705, 2708, 2726; see also id. at 8961-62 (third-party appeal to EIR-EIS certification).) Thus, plaintiffs’ argument that a no-amendment alternative should be considered because it preserves existing land-use rules fails because the Project has no significant and unavoidable effects related to land-use regulations.

A no-amendment alternative would necessarily be smaller than the Proposed project because only residential units could be built. But because any reduced-size project would still create additional traffic and generate greenhouse emissions, TRPA explained that the Project’s unavoidable impacts are likely to remain substantial and unavoidable with any smaller alternative. (See id. at 8961 (“Any alternative that would result in an incremental increase in traffic at Fanny Bridge would also result in significant and unavoidable impacts ....”), 8962 (“Any alternative that attains the basic objective of the Project, however, would also result in significant and unavoidable impacts with respect to cumulative climate change.”).) Substantial evidence supports the conclusion that the no-amendment alternative would not avoid or substantially reduce the Project’s unavoidable impacts. The court thus finds that the EIR-EIS’s alternatives analysis is not inadequate because it did not consider a no-amendment alternative.

2. Additional Reduced-Size Alternative

As explained above, the range of alternatives considered in the EIR-EIS was reasonable. “When an EIR discusses a reasonable range of alte