ORINDA  22 ORINDA WAY, ORINDA, CA 94563  Communications Received from the Public  JULY 16, 2024  CITY COUNCIL CLOSED SESSION  CONFERENCEWTHLEGALCOUNSEL-OSEEVSCIYOFORNDA  Name Nick Waranoff  Pages 1-34    From: Sent: To: Cc: Subject: Attachments:  Nick Waranoff Monday, July 15, 20248:23PM Sheri Smith  Darlene Gee; Latika Malkani; Brandyn Iverson; Inga Miller; Janet Riley  Closed Session July 16, 2024 Public Comment Minute Order granting petition in part Copy.pdf  Please consider this as a comment on the following Agenda item: CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION. Pursuant to Government Code Section 54956.9(d)(1), conference with Legal Counsel regarding existing litigation: ORINDANS FOR SAFE EMERGENCY EVACUATION V. City ofOrinda, Contra Costa County Superior Court A group ofOrinda residents, Orindans for Safe Emergency Evacuation, won its case against the City ofOrinda. The ruling is attached for your convenience. Part VII contains a summary of The Council, and the residents of Orinda, are entitled to an explanation from the Legal Counsel representing the City explaining why Legal Counsel rejected my repeated importunings that the City take advantage of the free, non-binding mediation program offered by the Contra Costa County Superior Court. At least two oft the mediators in the program are retired Justices ofthe Court of Appeal, each ofwhom heard over 20 CEQA cases while on the bench. Mediation briefs are limited to five-page letters. The cost would have been minimal. Likewise, we are entitled to an explanation of why independent counsel was not hired or consulted to provide an evaluation of the case independent ofthe law firm ofthe City Attorney. The City Attorney was personally involved with approval of the EIR that is the subject oft the lawsuit. The law firm of the City Attorney has and has had an obvious financial interest in prolonging the case. Given these facts, an independent evaluation by a mediator, and/or by an independent law firm, should Idon'tknow how much the case has cost the city in legal fees, but I have been told that the mayor said recently that the cost is $1 million. This is 7% of the city's annual budget. Much of this expense might have been avoided had the city participated in a free, non-binding mediation. The four lawyers on the council know that mediation settles the overwhelming majority ofcivil cases. Some reports indicate 80% to 90% of civil cases settle during mediation. The citizens' group was willing to participate, but the city refused. Although there isn no guarantee that a mediation would have resolved this case, and avoided much ofthe legal fees incurred, the failure to even participate in a free non-binding mediation is inexcusable. Moreover, as Ihave repeatedly pointed out, the city should have approached the subject oft this case - safe emergency evacuation - ina a non-adversarial manner. Weall presumably want safe  Case No. N23-0579:  the court's ruling.  have been obtained.    emergency evacuation. Yet instead of devoting its efforts over the 16 months during which this lawsuit has been pending, to maximizing safe evacuation, the council has played hardball with the citizens group, treating this as a case it had to win rather than a life and death problem affecting the city that needs to be solved. The city has lost the case, and we. have all lost precious time that could have been spent improving emergency evacuation. The only winners  are the lawyers. Nick Waranoff A retired lawyer  2    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.or  K.E Bieker Court Executive Officer  MINUTE ORDER  ORINDANS FOR SAFE EMERGENCY EVACUATION VS. CITY OF  N23-0579  ORINDA  HEARING DATE: 02/22/2024  PROCEEDINGS: SPECIAL SET HEARING RE: PETITION FOR WRIT OF MANDATE  DEPARTMENT12 JUDICIAL OFFICER: CHARLES STREAT JOURNAL ENTRIES:  CLERK: A. MONTGOMERY  The Court received at timely opposition tot the below tentative ruling:  Before the Court is a petition for writ of mandate filed by petitioner Orindans for Safe Emergency Evacuation ("OSEE") against the City of Orinda as respondent ("City" or' "Respondent").  For the reasons set forth, the petition is granted in part.  Case Background  Petitioner OSEE challenges respondent City's certification of the Plan Orinda Final Environmental Impact Report/Responses to Comments on the Draft EIR ("FEIR") in connection with the approval of zoning modifications and general plan amendments (the' "Project" or' "Plan Orinda") approved on. January 31, 2023. (Administrative Record ("AR")1-116.) OSEE contends the City failed too comply with the California Environmental Quality Act, Public Resources Code 55 21000 et seq. ("CEQA") in approving the FEIR and the Project for reasons detailed below. OSEE: seeks a writ of mandate ordering the City to vacate its certification of the FEIR: and approval of the Project, and  other related relief.  II. Procedural Background and the OSEE Petition  On September 15, 2022, the City issued a draft Plan Orinda Environmental Impact Report ("DEIR"). (AR2 2, 141.) The DEIR describes the Project subject to the DEIR as "Plan Orinda" which is a "long range planning effort" with amendments tot the City's General Plan and zoning changes consisting oft three primary components: (1)a' "2023-2031 Housing Element Update" ("Housing Element"), (2) al Downtown Precise Plan ("DPP"), and (3) a Safety Element Update ("Safety Element"), as well as related general plan and other amendments. (AR 175, 191, 192 [DEIR].) The zoning and general plan modifications are aimed at increasing the number of dwelling units allowed ini the Cityf for the City to meet its Regional Housing Needs Allocation ("RHNA") and comply with the Housing Element Law, Government Code S5 66580 et seq. ("Housing Law"). (AR 191, 198 [DEIR].) The project area studied ini the EIR' "includes the entire city, with the DPP Plan Area delineated from, but contained within, the rest of the Housing Element Update Plan Area." (AR 192.) The Housing Element Sites outside the DPP arei identified as HE-1 through HE-5. (AR1 199 [DEIR].) Overall, the General Plan and zoning amendments would allow residential development in areas outside the DPP and residential development ini the DPP that would potentially increase    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.0rs  K.Bieker Court Executive Officer  residential housing and density in the City by adding up to 2,383 new housing units to help the City meet the Housing Law requirements. (AR 415 [DEIR).) The City estimates the new housing could also add 6,672 new residents tot the City overall, including an estimated 4,530 residents ini the DPP, The City received comments on the DEIR and conducted a virtual public meeting on the DEIR before the Downtown Planning & Housing Element Subcommittee on October 22, 2022. (AR 4.) The initial public comment period on the DEIR closed on October 31, 2022. (AR2.) On November 9, 2022, the City released the first draft of its Evacuation. Analysis for public comment. (AR 3182.) On. January 13, 2023, the Cityi issued the FEIR which includes the DEIR, written comments on the DEIR by certain agencies and the public, andi the City's responses toi the comments on the DEIR. (AR 4.) (For convenience, this tentative ruling will generally refer to the "EIR" unless the context warrants specific reference to the DEIR portion oft the FEIR or the comments/fesponses portion of On. January 18, 2023, a noticed hearing was conducted before the City Planning Commission at which additional public comments were presented on the Project and the EIR. (AR 4,16975.)Thel Planning Commission recommended approval oft the EIR andi the Project tot the Orinda City Council. (AR4, 16975,1 17028.) The City Council held a noticed public hearing on the certification of the FEIR and approval ofi the Project on. January 31, 2023. (AR4,16972-17054). After receiving written and oral public comments, the City Council approved the Project and certified the FEIR at the conclusion of the. January 31, 2023 public meeting. (AR2 2-79 [Res. No. 07-23].) The City issued a written notice of determination ("NOD") on February 1, 2023. (AR1 1.) The NOD included a 'Statement of Overriding Considerations" in which the City found the benefits oft the Project outweighed any adverse, unmitigated environmental impacts described int the FEIR. (AR! 5,4 40-41 OSEE1 timely filedi its initial Verified Petition for Writ of Mandate challenging certification of the FEIR and approval ofi the Project on March 3, 2023. On. June 16, 2023, OSEE al First Amended Verified Petition for Writ of Mandate ("Amended Petition"). The City filed an answer to the The Amended Petition asserts two causes of action. Thei first alleges a violation of CEQA for "Failure to Disclose and Analyze Significant Effects and Feasible Mitigation Measures," andi the second a violation of CEQA based on "Inadequate Findings and Statement of Overriding Considerations." The parties have complied with: stipulated briefing schedules approved byt the Court and timely filed their respective briefs. The Court requested supplemental briefing and continued the original hearing date on the petition to address issues raised byt the briefs as to  (AR 415-416, 203-205 [DEIR].)  the FEIR.)  [Res. No. 7-23].)  operative Amended Petition on November 6, 2023.  which the Court sought clarification and additional explanation. III. Standard of Review and Burden of Proof  Inr reviewing the City's decision to certify the FEIR, the Court determines whether the Respondent abused its discretion under CEQA either "byf failing to proceed ini the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (IPub. Res. Code]    Superior Court of California, Contra Costa County  Department: 12 925-608-1000 www.ce-courts.Or  K. Bieker Court Executive Officer  $21168.5.)" (Banning Ranch Conservancy V. City of Newport Beach (2017)2 Cal.5th 918, 935 [internal quotation marks omitted).) Whetheri the FEIR omits essential information is' "a procedural question subject to de novo review." (Id.) (See also King & Gardiner Farms, LLCV. County of Kern (2020) 45 Cal.App.5th 814, 837-38 [abuse of discretion by public agency's failure' " 'to proceed in a manner required by CEQA is a procedural (i.e., legal) error." "J.) "Courts do not pass upon the correctness of an EIR's environmental conclusions but only upon its sufficiency as an informative document. [Citation omitted.]" (City of Poway V. City of San Diego (1984) 155 Cal.App.3d 1037, 1041.)"ITJo prove prejudicial error, the appellant must demonstrate 'thet failure to include relevant information preclude(d] informed decisionmaking andi informed public participation, thereby thwarting the statutory goals oft the EIR process." (Save the Hill Group V. Cityofl Livermore (2022) An agency fails to proceed ini the manner required by CEQA when the agency fails to include in the certified EIR1 the information mandated by CEQA. (Vineyard Area Citizens for Responsible Growth, Inc. V. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.)' "Whether or not the alleged inadequacy is the complete omission ofa a required discussion or a patently inadequate one-paragraph discussion devoid of analysis, the reviewing court must decide whether the EIR serves its purpose as an informational document." (Sierra Club V. County of Fresno (2018)6Cal.5th 502, 516.)' "Technical perfection is not required; the courts have looked noti for an exhaustive analysis but for adequacy, completeness and a good faith effort at full disclosure. [Citations omitted.]" (Rio Vista Farm Bureau Center V. County of Solano (1992)5Cal.App.4th. 351, 368.) The City's factual determinations are generally reviewed under the substantial evidence standard, pursuant to which the Court "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." (Sierra Club, 6Cal.5th at 512 [internal quotation marks omitted, quoting Vineyard, 40 Cal.4th at 35J.) Whether the EIR includes an adequate discussion of the environmental or other impacts ofa a project "presents a mixed question of law and fact." (Sierra Club, 6Cal.5th at 516.) "Thus, to the extent a mixed question requires a determination whether statutory criteria were. satisfied, de novo review isa appropriate; but toi the extent factual questions predominate, a more deferential standard is warranted. [Citation omitted.]" (Id.However, "whethera a description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of thei impact is not a substantial "Substantial evidence' is defined as' 'enough relevant information and reasonable inferences from this information that at fair argument can be made to support a conclusion, even though other conclusions might also be reached.' (Cal. Code Regs. tit. 14, $1 15384, subd. (a).) 'The agency is thet finder of fact and we must indulge all reasonable inferences from the evidence that would support the agency's determinations and resolve all conflicts in the evidence in favor of the agency's decision. [Citation omitted.]" (Cityo of Hayward V. Trustees of California State University An EIR is presumed to be adequate. (Rialto Citizens for Responsible Growth V. City of Rialto (2012) 208 Cal.App.4th 899, 924.) The City's decision to certify the EIR is also presumed to comply  76 Cal.App.5th 1092,1109.)  evidence question." (Sierra Club, 6 Cal.5th at 514  (2015) 242 Cal.App.4th 833, 839-840.)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.org  K. Bieker Court Executive Officer  with CEQA and' "is presumed correct [citation omitted)." (Id. at 925.)" "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. [Citation omitted.]" (Id. at 925.) IV. General Standards Applicable to al Program EIR  The parties do not contest that the FEIR is a program EIR related to the approval of revisions toi the General Plan and zoning addressed ini the Housing Element and a modified Safety Plan, allowing future residential development in various locations ini the City in order to meet the state-mandated housing requirements under the Housing Law. (AR: 175, 191.) Specific future development projects will require their own environmental review and approval, which may entail ar new EIR or a negative declaration, unless thet future project is exempt from CEQA, as the EIR explains. (AR: 181 ["IF]uture development proposals would be reviewed to determine whether their impacts have been addressed within this EIR, ori ifadditional: site-specific environmental review would be required. Subsequent environmental documents, when required, could' 'tier' from the Plan Orinda EIR and focus their analysis on news significant impacts or an increase in the severity of A program EIRi is generally used to examine al broad program at a relatively early stage of the planning process, before specific components of the program are ready for approval. (140 Cal. Code Regs. S 15168, subds. (a)-(c).) The level of specificity required in an EIR corresponds to the specificity oft the underlying project. (See 14 Cal. Code Regs. S 15146, subd. (a).) A program EIR1 fora general, high-level planning document therefore is generally less specific or detailed than an EIR addressing a specific development. (Id.) Under CEQA's tiering process, al lead agency will often develop project-level EIRS or negative declarations that tier from the program EIR, focusing on details that the program EIR did not cover. (14 Cal. Code Regs. S 15152, subds. (a)-(d), (f),(g).) A program EIRI must address impacts of the project which may expand or change in the future where the' "future expansion and general type of future use is reasonablyi foreseeable." (Laurel Heights Improvement. Assn. V. Regents oft the University of California (1988) 47 Cal.3d376, 396, 397.) In Center for Biological Diversity V. Department of Conservation, etc. (2019)36 Cal.App.5th: 210, the Court of Appeal addressed principles relevant to its analysis ofay program EIR which are also relevant in this case. "First, a program EIR may appropriately defer discussion of site- specific impacts and mitigation measures tol later project EIR's where such 'impacts or mitigation measures are not determined by thei first-tier approval decision but are: specific to the later phases.' [Citation, internal quotation marks omitted.] Second, the sufficiency of a program EIR must be reviewed in light of what is reasonably feasible, given the nature and scope oft the project. [Citations omitted.] Third, in considering a challenge to a program EIR, we focus on' 'whether the EIR includes enough detail "to enable those who did not participate ini its preparation to understand. and to consider meaningfully the issues raised by the proposed project." [Citations.]' [Citations omitted.]" (Id. at 230-31.) (See also Laurel Heights, 47 Cal.3d at 405; San Franciscans for Livable Neighborhoods V. City and County of San Francisco (2018) 26 Cal.App.5th! 596, 608-09 [stating designating an EIR as a program level alone' " 'does not decrease the level of analysis"  impacts pursuant to CEQA Guidelines Sections 15152 and 15385."J.)    Superior Court of California, Contra Costa County  Department: 12 925-608-1000 www.ce-courts.or required).)  K. Bieker Court Executive Officer  The California Supreme Court has held that' "as sufficient discussion of significant impacts requires not merely a determination of whether an impact is significant, but some effort to explain the nature and magnitude oft the impact. [Citations omitted.]" (Sierra Club, 60 Cal.5th at! 519 [emphasis added).) (See also Cleveland National Forest Foundation V. San Diego Assn. of Governments (2017)3 3 Cal.5th 497, 514-15.) Designating an adverse environmental impact as significant in the EIR' "does not excuse the EIR's failure to reasonably describe the nature and magnitude oft the adverse effect. [Citation omitted.]" (Sierra Club, 6 Cal.5th at 514 [citing Berkeley Keep. Jets Over the Bay Com. V. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371.) To comply with CEQA, agencies generally are not required to analyze the impact of existing environmental conditions on a project's future users or residents. But when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impact of such hazards on future residents or users. In those specific instances, iti is the project's impact on the environment - noti the environment's impact ont the project -1 that compels an evaluation of how future residents or users could be affected by exacerbated conditions." (California Building Industry Assn. V. Bay Area Air Quality Mgmt. Dist. (2015) 62 Cal.4th 369, at 377-78 [emphasis added).) An EIR should consider: significant environmental impacts caused or exacerbated by locating people and development in areas subject tov wildfires, including impacts the project may have on the ability ofr residents to evacuate the area based ont the evacuation plan adopted by the City. (League to. Save Lake Tahoe V. County of Placer (2022) 75 Cal.App.5th 63, 136; 14 Cal. Code Regs. S 15126.2, subd. (a).) The Court in. Save Lake Tahoe explained that when the Court reviews whether a project may interfere with an evacuation plan, it is' "primarily concerned that the public and decision makers understand the impact the project will have on the new residents': ability to evacuate." (75 Cal.App.5th at 136). The Court assesses the claimed procedural violations of the EIR: and whether the EIR's information regarding wildfire impacts on evacuation was inadequate in light of these standards.  V. Issues Raised by Petitioner  Petitioner raises four general issues it asks the Court to review: (1) does the EIR meet the requirements of CEQA as as sufficient informational document in its discussion wildfire impacts on evacuation when (a) it does not address the wildfire impacts of the Project of "increased population ini the DPP," or development in areas outside HE-5 facilitated by the Project will impact evacuation in the event of a wildfire (POB AH-ARIAVA 18, L.19), and the separate Evacuation Analysis addresses existing residential development but not thei future projected residents and housing development contemplated int the Housing Element and DPP and has ai flawed conclusion that the DPP is least constrained though two of the most constrained intersections (POB p. 13,1.16-p.: 15,1 1.4), (b) to the extent the City addressed thei impacts of the additional potential residents based on the Housing Element including the DPP, it did sO only with respect to emergency response and not evacuation (POB p. 15,11.5-p.1 16,1.6), (c) the EIR does noti identify how the "threshold of significance" stated in Impact WFR-1 is crossed (POB p. 18,11.2 20-    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.or8  K.E Bieker Court Executive Officer  28); (2) does the EIR fail to comply with CEQA because (a) mitigation measures directed to Impact WFR-1 are limited to HE-4 and HE-5a and fail to address "increased population in the DPP," and the EIR fails toi include mitigation measures for the DPP, and (b) mitigation measures for Impact WFR-1 arei impermissibly deferred (POB p. 20,1.1-p. 21, 1.19); (3) is the statement of overriding considerations flawed because the discussion oft the wildfire impacts and mitigation fori those impacts are insufficient under CEQA, so1 the decision-makers did not have adequate information on the "impacts" side of the equation to draw the conclusion that the benefits outweigh the impacts (POB p. 21, 1.20-p. 22,1.2 25); and (4)i is the EIR inadequate as an informational document under CEQA as it does not contain adequate information regarding VMT (Vehicle Miles Travelled), because the EIR incorrectly assumes there willl be no demolition of businesses, andi three gas VI. Respondent's Contentions Regarding Petitioner's Failure to Exhaust Administrative Remedies The City contends that some of the arguments raised by Petitioner ini the POB were not raised in comments during administrative proceedings before the City approved the Project.  stations willl be demolished (POB P.23,11-p.24,L.7).  A. Governing Standards for Exhaustion  Public Resources Code $ 21177 codifies the exhaustion of administrative remedies rules for CEQA. (Defend Our Waterfront V. State Lands Com. (2015) 240 Cal.App.4th! 570, 581.) Under the statute, the petitioner must generally have "objected to the approval of the project orally or in writing" before the notice of determination, and "the alleged grounds for noncompliance" with CEQA must have been "presented to the public agency orally or in writing by any person during the public comment period provided by this division or before the close oft the public hearing on the project before thei issuance of the notice of determination." (Pub. Res. Code S 21177 subd. (a) and Petitioner bears the burden of proving that it exhausted each issue for which it seeks judicial review by raising it at the administrative level. (Citizens for Responsible Equitable Environmental Development V. City of San Diego (2011) 196 Cal.App.4th! 515, 527; North Coast Rivers Alliance V. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 624.) The Petitioner itself does not have tol have raised the issue; ift the Petitioner participated in the administrative proceedings, the Petitioner can raise grounds for noncompliance raised by other commenters during the public comment period or beforet the close of the public hearing. (Bakersfield Citizens for Local Control V. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199 ["The petitioner may allege as a ground of noncompliance any objection that was presented by any person or entity during the administrative proceedings. [Citation omitted.)"1.)" "Although it is true the plaintiff need not have personally raised thei issue [citation omitted), the exact issue raised in the lawsuit must have been presented tot the administrative agency so1 that it will have had an opportunity to act and render the litigation unnecessary. [Citation omitted.)" (Resource Defense Fund V. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894, disapproved on other grounds in Voices of the Wetlands V. State Water Resources Control Bd. (2011) 52 Cal.4th 499,529.) "Tosatisfy the exhaustion doctrine, an issue must be 'fairly presented" to the agency.  (b).)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.or  K.E Bieker Court Executive Officer  [Citation omitted.] Evidence must be presented in a manner that gives the agency the opportunity torespond with countervailing evidence. [Citation omitted.]" (Citizens for Responsible Equitable Environmental Development, 196 Cal.App.4th at! 527-28 [letters with only "general, unelaborated objections [are] insufficient to satisfy the exhaustion doctrine"1-)" "The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected toj judicial review." '[Citation omitted.] : 'The purposes of the doctrine are not satisfied if the objections are not sufficiently specific sO as to allow the Agency the opportunity to evaluate and respond tot them.' [Citation omitted.] : Requiring anything less' 'would enable litigants to narrow, obscure, or even omit their arguments before the final administrative authority because they could possibly obtain a more favorable decision froma trial court.' [Citation omitted.]" (North Coast Rivers Alliance, 216 Cal.App.4th at 623 [reiterating that' "bland" or general references, or unelaborated comments do not meeti the exhaustion requirement as they do not allow the agency to respond tot thei issue at the administrative level, holding certain specific issues raised were not exhausted by general comment letters did not exhaust the issue of whetheras specifictank was inconsistent with county plan).)  B. Issues the City Contends Were Not Exhausted 1. Informational Deficiency as to Impacts on Evacuation  As toi informational deficiencies ini the EIR, to the extent the City contends that the EIR's failure to sufficiently evaluate the Project impacts on evacuation plans was not exhausted, the Court rejects that position. The record is replete with evidence that issue was exhausted. (See AR 854 [parked cars in DPP), 856, 3739 [evacuation benefit from less housing downtown), 3832 [not approve Housing Element and DPP pending further study on evacuation), 15893, 49305-49306  cited at POB p. 16, 1L.10-15 and Petitioner's Reply pp. 12-13.)  2. How Threshold of Significance Was Crossed  The City contends Petitioner has not exhausted administrative remedies as to the argument that the EIR failed to 'articulate how the significance threshold for Impact WFR-1 was crossed." (Resp. Brief p. 28, 1.5-8, citing POB p. 18.) The Court agrees that this issue was not raised ore exhausted under the standards set forth above. (AR3 3750-3752; 3774-3775, 3777;3809-3810; 3811-3812; 857-860; 854-856; 870-884.) Petitioner has not cited to any written public comments or the oral objections reflected ini the minutes and transcripts of the Planning Commission and City Council hearing that raise that objection, and Petitioner has not demonstrated this specific issue was fairly presentedi ini the administrative proceedings in a manner that allowed the City to address and respond tot this concern. (Citizens for Responsible Equitable Environmental Development, 196 Cal.App.4th at 527-28.) The Court is not persuaded that the evidence from the record cited by Petitioner ini its reply met the standard for exhaustion by giving the City fair notice oft the issue to provide the City an opportunity to address the issue through the administrative process. (See Reply p.13,1.20-p.1 14,1.22.) Petitioner relies on 'generalized objections"; such as Waranoff's submission of the 14-page "Best Practices" guidelines with a general statement "Please take note of the attached paper and consider the points mentioned therein as comments by me."( (AR870-    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.or  K. Bieker Court Executive Officer  887.) Under the standards of CEQA and the case law, these general statements are not sufficient to identify any specific objection or concern regarding the EIR at issue and its compliance or lack of compliance with any oft the 14 pages of statements int the attachment. (Citizens, for Responsible Equitable Environmental Development, 196 Cal.App.4th at 527-28; North Coast Rivers. Alliance, 216 Cal.App.4th at 623.) However, to the extent that the crossing of the threshold of significance" is subsumed within Petitioner's broader claim that the EIRI fails to adequately address the Project impacts on evacuation by describing the nature and magnitude of the Project's impacts in the  wildfire hazards discussion, the Court considers the broader issue.  3. Evacuation Analysis  The City also contends Petitioner did not exhaust arguments regarding thei failure to address emergency response and evacuation impacts in' WFR-2 in the EIR (Resp. Brief p. 23,11. 15- 16), and the conclusion int the Evacuation. Analysis that the downtown area is least constrained is "flawed" because two intersections in the downtown area, the onramps to SR24, are some oft the most constrained (Resp. Brief p. 24, II. 16-19). The Court agrees that the comments did not specifically cite Impact WFR-2 ori the specific finding regarding the two most constrained intersections and downtown as least constrained. (AR: 3750-3752; 3774-3775, 3777;3809-3810; 3811-3812; 857-860; 854-856; 870-884.) The Court, however, interprets Petitioner's arguments regarding WFR-2 not as a separate objection to the sufficiency oft the EIR, but rather as support for Petitioner's primary argument that Impact WFR-1 does not specifically analyze wildfire and evacuation impacts on the DPP and that Mitigation Measure WFR-1 does not adequately mitigate the evacuation impacts of the Project. The Court interprets Petitioner's POB: as citing WFR-2to show that the impacts on evacuation specific to the DPP are not addressed in WFR-2 or any other The transcript oft the. January 31, 2023 City Council hearing reflects there was an objection tot the adequacy of the Evacuation Analysis because it addressed only existing conditions but' "did not consider thei future downtown residents." (AR: 3811.). Another comment cited above expressed concern regarding existing traffic congestion issues downtown and that additional housing and cars downtown would exacerbate the problem. (AR 49305-49306.) Under the standards cited above, and considering the comments are made by lay people, the comments sufficiently apprised the City of1 the commenters' disputes with the conclusions in the Evacuation Analysis regarding downtown Orinda and the impact of the Project's proposed additional housing in the DPP on evacuation. In any event, the Court does noti find thet fact that thet two most constrained intersections are located downtown means that the DPP is also the most constrained area or that adding housing in the DPP necessarily means evacuation from the DPP will be constrained, even if Petitioner has exhausted the issue and can raise the argument in support of the Petition. The Evacuation Analysis explains that evacuation constraints are impacted byt the number ofi intersections evacuees must pass through, and people ini the DPP pass through thei fewest intersections to reach the evacuation  relevant portion of the FEIR.  route (SR-24). (AR 16884, 16889.)  4. Mitigation Issues    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.or  K. Bieker CourtE Executive Officer  The City contends that several of Petitioner's arguments concerning Mitigation Measure WFR-1 were not exhausted, including the inadequacy of Mitigation Measure WFR-1 because it only requires preparation of a Wildfire Hazard. Assessment and Plan with shelter-in-place guidelines for Housing Element Sites 4 and! 5 and not the DPP, and because that mitigation measure improperly defers preparation or adoption oft those components oft the proposed mitigation measures to address the evacuation impacts in HE-4 and HE-5 (Resp. Brief p. 29, II.1 13-15). The Court agrees with  the City in part.  a. Exhaustion of Inadequacy of Mitigation Measure WFR-1 Based onl Its Limitation tol HE-4 and HE-5 Without Consideration or Explanation of Whether Mitigation  Is Needed to Address the Project Impacts in the DPP  One public commenter asserted concerns regarding the planned residential development int the downtown and the' "EIR's omission of an alternative to reduce the negative effects on emergency evacuation," while asking the City to "expand the emergency evacuation analysis to include the impacts of the buildout of Plan Orinda." (AR: 3811-3812.) The commenter suggested that' "[sjhifting a majority oft the planned housing out of downtown to other sites, including the large vacant Caltrans site, would reduce the adverse impact identified in the EIR: andi the remaining new housing and retail downtown would meet the project objectives, especially when density bonus incentives are utilized." (AR: 3812.) The statements construed int the context of comments from al lay person sufficiently raise the concern that the Cityf failed to address mitigating the evacuation impacts ofa al buildout of the Project specifically with respect toi the DPP.  Another comment asserted that downtown is a "major choke point," adding residents and cars tot that area would' 'exacerbate the existing emergency evacuation problem,"a and that' "major additions to housing ori traffic must address the problem of emergency evacuation fully and at the very least include a sincere effort tot find alternatives to exacerbating the problem rather than simply accepting the situation as the price of progress." (AR 49305-49306, cited at POB p. 16, II. 10- 16.) While the statements could be construed as requesting that the City address alternatives to more residential development downtown as opposed to other locations, the statements construed ini the context of comments by a lay person sufficiently raise the concern that the City failed to address measures mitigating the evacuation impacts oft the Project and al buildout of the DPP with residential housing in particular. (Save Agoura Cornell Knoll V. City ofA Agoura Hills (2020)46 Cal.App.5th 665, 680 [the "court independently reviews the administrative record to determine whether the exhaustion of administrative remedies doctrine applies." "J; Save the Hill Group V. City ofLivermore (2022) 76 Cal.App.5th 1092, 1105 ["courts have acknowledged less specificity is required to preserve an issue for appeal in an administrative proceeding than in a court proceeding because parties are not generally represented by counsel before administrative bodies: 'OTo hold such parties to knowledge of the technical rules ofe evidence andi tot the penalty of waiver for failure tor make at timely and specific objection would be unfair to them.0 [Citations omitted.)," concluding public comments inquiring regarding alternatives that might be explored to preserve the habitat in question sufficiently apprised the city' "of the RFEIR's failure to adequately flesh out thet feasibility  of not going forward with the Project.").)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-cours.oIE  K.E Bieker Court Executive Officer  b. Failure to Exhaust Issue that Mitigation Measure WFR-1  Improperly Defers Mitigation  The record cited by Petitioner does not show that thei issuei that Mitigation Measure WFR-1 improperly defers mitigation was raised before the City int the administrative process. The general comments cited above as tot thej inadequacy of Mitigation Measure WFR-1 to mitigate the adverse impacts oft the Project on evacuation, andi ther need fort further evacuation modeling or analysis, did not fairly apprise the Cityt that Petitioner, or another objector, believed Mitigation Measure WFR-1 orr nay ofi its components improperly deferred mitigation tot thet future. That issue has not been exhausted. (Citizens for Responsible Equitable Environmental Development, 196 Cal.App.4th at 527- 28.) Petitioner's reliance on Waranoff's general referral to the 14-page "Best Practices" publication did not provide the City fair notice that the claimed inadequacy of Mitigation Measure WFR-1 was that it deferred mitigation iny violation of CEQAI by relying on thei future creation of the Wildfire Hazard and. Assessment Plani for HE-4 and HE-5. (AR 870-887; Harrington V. City of Davis (2017) 16 Cal.App.5th 420, 440-41.) (Compare Pet. Reply p. 14,1.24-F p. 15, 1.71 [citing to one statement in the 14-page Bonta guidance not specifically cited or referred to by' Waranoff or anyone else] to Pet.  Reply p. 15, II. 8-16.)  VII. Summary of Court's Conclusions Regarding Issues Subject to Review  The FEIR does not comply with CEQA's informational and disclosure requirements in its analysis of Wildfire Impacts WFR-1. The EIR's discussion of Wildfire Impacts WFR-1 is internally inconsistent in addressing the impact of the Project from a wildfire standpoint on City evacuation plans, fails to identify the County evacuation plan that is impaired, which is the conclusion stated in Impact WFR-1 and the related threshold, and fails to provide sufficient information to explain the City's conclusion regarding how the Project has as significant, unavoidable impact because it "risks exacerbating [the] existing environmental conditions" based on the City's stated methodology. (AR 506; Sierra Club, 6Cal.5th at 514, 519; Cleveland National Forest. Foundation, 3 Cal.5th at 514-15.) The FEIR also fails to comply with CEQA int that the City determined in' Wildfire Impact WFR-1 that the Project as a whole significantly impairs evacuation, but the City included mitigation only as to HE-4 and HE-5, without an explanation of why mitigation is not required for1 the impacts of the Project as a whole rather than onlyt those two sites, and without attempting to mitigate impacts of the Project on evacuation from the remainder of the Project areas. Because the EIR provides ambiguous information on thei impacts on evacuation in' WFR-1 and does not provide the public and decision-makers with sufficient information to understand the magnitude of the impacts of the Project on evacuation ini thet face of wildfire hazards, the City did not! have sufficient information to balance the benefits of thel Project against its adverse impacts, after mitigation, and the City's Statement of Overriding Considerations is therefore not supported. (San Franciscans, for Reasonable Growth V. City & County of San Francisco (1984) 151 Cal.App.3d 61, 79-80.) As a result, the Court finds Petitioner has demonstrated the City failed to proceed in the manner required by CEQA in certifying the FEIR andi issuing the Statement of Overriding Considerations. The Court is not persuaded by Petitioner's arguments that there was an inadequate analysis of vehicle miles traveled (VMT) or that the City's conclusions regarding VMT are not    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.OrE  K.E Bieker Court Executive Officer  supported bys substantial evidence in the record. VIII. Analysis of Claims Presented by Petitioner  The backdrop tot the Court's discussion of the specific challenges to the FEIR raised by Petitioner isi that the Project is an attempt by the City to timely fulfill certain mandates to address California's: severe housing shortage imposed through the RHNA new housing allocation imposed on the City and other municipalities andj jurisdictions by January 31, 2023. (AR: 191, 198.)J January 31, 2023 was the statutory deadline set under the Housing Law for the City and other municipalities and jurisdictions to update their Housing Elements ini their general plans to accommodate the new housing allocated to them. (Govt. Code 55 66580 et seq.) Petitioner does not dispute the City was obligated to add the new housing subject to Plan Orinda based on its RHNA and the Housing Law. (AR 197-206.) The new housing had to be added somewhere ini the City, a city that the parties do not dispute is located in or near areas with high wildfire risks and that already has traffic congestion and evacuation constraints based on its topography and the limited number of main evacuation routes, primarily the highway SR-24. (AR 495-496, 498-499.) Additionally, the challenges Petitioner makes tot the sufficiency oft the FEIR are very limited, primarily whether wildfire Impact WFR-1 has sufficient information on1 the Project's significant impact on evacuation and whether the EIR proposes proper mitigation for that significant impact. Petitioner in effect concedes that iti is not challenging the City's decision to place more housing in the DPP, which provides for high-density housing not ini the areas oft the City designated as subject tos severe wildfire risk, than in other locations. Petitioner has not contested the City's alternatives examined ini the EIR: asi inadequate or its conclusions that the Project is superior to the other There is also no dispute that Petitioner understood that the Project would have a significant adverse impact on evacuation, and Petitioner does not dispute the City's conclusion in that regard. The transcript of the City Planning Commission hearing and minutes addressing the approval of the Project reflect that the objectors understood that the City concluded thel Project as awhole, which would include the DPP, would have significant impacts on evacuation. (AR 3750- 3752 [1/18/2023 Planning Comm. Min. [including Waranoff comment that the' "EIR found that the congestion that would be added by the DPP is a significant and unavoidable impact which cannot ber mitigated," Jacobson comment that' "the EIR concluded that the significant increase in the downtown population proposed by Plan Orinda could substantially impair an adopted emergency response plan fore emergency evacuation," and response to public comments explaining "the significant and unavoidable impact which the EIR calls out as associated with the Project is not specifically associated with development downtown, but for1 the project as a whole").) Petitioner cites authority that an EIR must analyze an environmental issue if there is a "fair argument" supported by substantial evidence int the record that there may be a significant impact. (POB p. 11, II. 20-13; Visalia Retail, LPV. City of Visalia (2018) 20 Cal.App.5th 1, 13-14 [substantial evidence' " includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.' [Citation omitted.]" but' Is/peculation, argument, unsubstantiated opinion or narrative and evidence of economic impacts are not substantial evidence. [Citation omitted.]" "Complaints, fears, and suspicions about a project's potential environmental impact likewise do not  alternatives.    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.Or  K.E Bieker Court Executive Officer  constitute substantial evidence. [Citations.]" [Citation.]" [Citation omitted.]"3.) In this case, there is no dispute that the City did study the potential impact of the Project on wildfire risks ini the EIR; A. Issue 1: Challenges Regarding Informational Sufficiency ofl Impact WFR-1 Petitioner contends the discussion of Impact WFR-1 is deficient int the FEIR because it does not address the impact oft the Project's proposed population and housing unit increases, particularly in the DPP, on evacuation plans. Petitioner cites several ways in which the FEIR fails to provide adequate information on wildfire impacts of the Project in Wildfire Impacts WFR-1, including its failure to identify the evacuation plans that would be significantly impaired byt the Project, failuret to address the DPP component of the Project, where most of the additional housing and residents will be located, on evacuation in the event of a wildfire, and thei failure to explain the basis for1 the City's conclusion that the evacuation plans would be substantially impaired while 1. Summaryof City's Stated Threshold of Significance as to Impact WFR-1 and the EIR's Analysis of Evacuation in Wildfire Impacts WFR-1  Petitioner's claim is that the City's analysis was inadequate.  asserting the Project is "consistent" withi its evacuation plans.  The EIR states the "Threshold of Significance" of wildfire impacts of the Project as follows: "lf located in or near: state responsibility areas or lands classified as very high fire hazard severity zones, would the project substantially impair an adopted emergency response plan or emergency evacuation plan?" (AR 509 [emphasis added).) (See also AR 506 [stating significance threshold number 1 as that the Project will have "a significant adverse impact" if it would "substantially impair an adopted emergency response plan or emergency evacuation plans"1.) It then: summarizes Impact WFR-1 as follows: Development facilitated by the Project would be in and near a WUI or Very High FHSZ. Compliance with applicable state and local regulations would reduce the extent to which the Project would impair emergencyresponse. and evacuation. Nonetheless this impact  would be significant and unavoidable. " (AR! 509 [emphasis added).)  Impact WFR-1 describes the location of the Housing Element sites and the DPP areai in relation to major evacuation routes, concluding that the evacuation routes "would be accessed by preexisting roadways" and that the development oft the Project "would noti impair the use of emergency evacuation routes through the modification of existing roadways either through elimination, reduction in width, or blockage." (AR 509.) Only HE-5is in a very high fire hazard zone, and that location is' "directly adjacent to" the critical evacuation route! SR-24, and HE-1 through HE- 4would generally rely on Moraga Way as an evacuation route. (AR 509.) As to the DPP with "higher-density housing,' the City explains that' "Orinda's maini transportation routes are close to all DPP sites and would be relied on as evacuation routes during a wildfire evacuation." (AR 509.) The EIR also cites the proposed Safety Element as ensuring all evacuation routes are accessible throughout the City, noting the proposed Safety Element update cited int the methodologies for this impact 'incorporates the Contra Costa County Hazard Mitigation Plan and the City of Orinda  Annex." (AR509.)  The ensuing paragraph in Impact WFR-1 addresses evacuation int thet final sentence, stating    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.OI  K.E Bieker Court Executive Officer  "BART would coordinate with the County ine emergency evacuation response by offering staging areas and assisting with evacuation on the rail network." (AR! 510.)7 The City also cites the Safety Element policies S-11 to S-10 as supporting emergency response and' "providing evacuation assistance for1 those with limited mobility or lack of access to a vehicle for evacuation"The City refers to the County's Emergency Operations Plan which the EIR states addresses emergency management to "ensure the safety of county residents and structures to the extent feasible," but does not explain whether that plan is an evacuation plan or specifically the evacuation plan the threshold of significance and Impact WFR-1: seems to conclude is impaired. The most specific summary of the impact of thel Project on evacuation in' WFR-1 is thei following cited by the City: Ani impact to emergency operations and evacuations could occur from construction off future projects ifi they were to result in temporary road closures, potentially reducing available emergency evacuation routes. Construction of new development could involve temporary lane closures or otherwise block traffici that could impede the ability of emergency vehicles to access the area. This would be limited to the construction site. Development facilitated by the project could further inhibit safe evacuation byi introducing more residents to the area that  would require evacuation on narrow hillside roadways. (AR 510 [emphasis added, cited by City at Resp. Supp. Brief p. 9, 11.8-15).)  The City's response in the FEIR to comments on the' "significant" impairment of evacuation plan conclusion in the DEIR makes reference to time for evacuation from the development of the Housing Element sites quoted above and then refers to the City's Draft Evacuation Analysis issued  in November 2022. (AR 889.) The City states inj pertinent part:  Since the Draft EIR was circulated for public review, the City has prepared an evacuation analysis looking at evacuation constraints for existing and potential new development within the City. This analysis supports the Draft EIR's conclusion that the existing conditions are already constrained when it comes to evacuation and that new development anticipated by the Housing Element could exacerbate those impacts as discussed on Page 4.14-16 [of the DEIRJ. The analysis, which was prepared to help the City update its Local Hazard Mitigation Plan, also contains a number of ideas fori infrastructure improvements and emergency response strategies that could help reduce evacuation times as discussed as part of Mitigation Measure WFR-1 on Page 4.14-16 of the Draft EIR. As part ofi its Local Hazard Mitigation Plan update, the City will review these recommendations and adopt those that are effective, feasible, and within the City'sj jurisdiction.  (AR 889 [emphasis added).)  The City also cites comments by a City Council member ini the portion oft thei transcript of the. January 31, 2023 hearing that refer to evacuation impacts because of "existing constrained evacuation conditions in some: scenarios" because "ladding more development could strain some oft these evacuation conditions." (AR: 3789 [emphasis added).) (See also AR 510, 511, 889.) Ini its    Superior Court of California, Contra Costa County  Department: 12 925-608-1000 www.cc-courts.Or  K.B Bieker Court Executive Officer  response to public comments, the City states that the EIR' 'acknowledges in a gualitative way the potentially: significant impact on evacuation routes and time resulting from development on the Housing Element sites (Draft EIR page 4.14-15)." (AR 889 [emphasis added).) The page cited from the DEIR: states that existing evacuation routes would be relied on fort the Housing Element sites and the DPP, andi that the City was adopting the Safety Element' "to ensure that emergency response and evacuation routes remain accessible throughout the city." (AR 509 |DEIR p. 4.14-15 (emphasis added)].) (See also AR 854-856 [responding to comment on DPP sites 14-17 without onsite parking required, potential impact of street parked vehicles on level ofs service of SR-24 onramps, emergency response and evacuation, with similar response that Transportation impacts addressed in EIR: section 4.11 regarding emergency response access would be addressed in future project-specific reviews, that evacuation would use existing evacuation routes which are not being modified byt the Project, that blocked roads during construction would be subject to Mitigation Measure WFR-1 [sic, should refer to Mitigation Measure WFR-2, and citingt the Evacuation Analysis 2. The City's Statements on Impairment of or Consistencyv with Evacuation Plans The City contends the EIR identifies various emergency response and evacuation plans in this portion of the DEIR, citing in particular the Contra Costa County Emergency Operations Plan (AR 504). The City does not refer toi that plan in the EIR discussion analyzing the significant and unavoidable impacts oft the Project in Impact WFR-1.7 To the contrary, the City acknowledges that the DEIR does not dentfhyanyparticular emergency response or evacuation plans that are impaired byt the Project. (Resp. Brief p. 14, II. 9-10.) Instead, the City repeatedly argues the DEIR "concluded the Project would be consistent with those [evacuation) plans." (Resp. Brief p. 14, II. 7- The City tries to clarify its position ini its supplemental reply. The City contends the Project iso consistent with' "evacuation plans" or' "adopted plans" but the Project "could exacerbate existing evacuation constraints." (Resp. Supp. Brief p. 8,1.8-p.9,L6)Thet City in effect contends that the Project does noti impair 'evacuation plans" (even though that is how the threshold of significance is framed) but willi impair "evacuation." (AR! 506 [thresholds ofs significance para. 1), 509 [threshold stated as whether adopted evacuation plans would be' 'substantially impaired,"a and Impact WFR-1, concluding compliance with regulations for evacuation would' "reduce the extent to which the project would impair. : evacuation" but the impact would stilll be' "significant and unavoidable"1.) The: subtlety oft this distinction is inadequately explained or addressed in impacts WFR-1, particularly ini light of the conclusion as to impact WFR-1. The conclusion states: "With implementation of Mitigation Measure WFR-1, congestion induced from additional residents at these Housing Element Sites during an evacuation may be reduced. However, it is not possible to ensure that the project would not substantially impair an adopted emergency response plan or emergency evacuation plan, despite implementation of mitigation. Thus, this impact would remain The discussion in wildfire impacts WFR-1 in the EIR is at best ambiguous, and at worst  and EIR's conclusion evacuation impacts are significant and unavoidable).)  and Substantial. Adverse Effect on Evacuation  9,p. 21,! 1I.2 22-23, and p. 28, II. 19-21.)  significant and unavoidable. " (AR 511 [emphasis added).)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.ors  K. Bieker Court Executive Officer  inconsistent, in informing decision-makers and the public reading thel EIR whether and how the Project significantly impairs adopted evacuation plans, based on the expressly stated threshold of significance when read in conjunction with contrary statements in Impact WFR-1 that the Project is "consistent" with those plans. There is an apparent possible inconsistency, from the point ofa They are not necessarily inconsistent with each other, depending on what the City means when it says that the Project is' "consistent" with existing evacuation plans. For example, does the Cityr mean that the Project is' "consistent" with them in the sense that it calls for no alteration or amendment oft the plans, even though the result of the Project for evacuation (even under the evacuation plans) will be worse? Ift that is what the Cityr means by' consistent,' - however, the EIR does not spell that out with clarity. The problem is that without an explanation of what the City does mean byt this, a reader seeing the assertion that the Project is "consistent" with evacuation plans could take that to mean that the Project will not have an adverse effect on evacuation - even though the EIRS says elsewhere that it will. The EIR: should be clarified to explain what the City means by this 'consistency" andi to eliminate the possible misreading of "consistent" as meaning "not an adverse effect." Thel lack ofi identification of the specific evacuation plan or plans the Project would either substantially impair, or would be consistent with, makes this discussion even more uncertain. This discussion in the EIR does not provide an explanation or detail sufficient to allow those who did not participate ini the preparation of the EIR to understand this aspect of the Project impact and must be clarified. (Center for Biological Diversity, 36 Cal.App.5th at 230-31.)  reader, ini these two statements.  3. Whether the City Had to Address Wildfire Impacts on the DPP  Rather than the Project as a Whole  Petitioner contends the EIR did not address the Project's proposed increase in population ini the DPP on evacuation. To the extent Petitioner contends some separate analysis oft the DPP portion of the Project on wildfire hazards and evacuation in WFR-1 was required, the Court agrees with the Cityt that the EIR properly could consideri the Project as a whole in assessing these impacts. The City argues that focusing on DPP in particular, rather than on the Project as a whole, would constitute impermissible piecemealing." - CEQA prohibits piecemealing," as "CEQA mandates 'that environmental considerations do not become submerged by chopping al large project into many little ones--each with a minimal potential impact on the environment-which cumulatively may have disastrous consequences." [Citation, internal quotation marks omitted.] Thus, the Guidelines define' project' broadly as 'the whole of an action, which has a potential for resulting in either a direct physical change ini the environment, ora a reasonably foreseeable indirect physical change in the environment. : [Citation, internal quotation marks omitted.]" (California Clean Energy Committee V. City of Woodland (2014) 225 Cal.App.4th 173, 193-94 [finding appropriate the EIR's analysis of urban decay based on the whole oft the project, as the EIR "had the hallmarks of a program EIR" and quoting Bozung V. Local Agency Formation Com. (1975) 13 Cal.3d  263,283-84).)  The City's logici is not generically as sound as it thinks it is. The prohibition on piecemealing    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.or  K.E Bieker Court Executive Officer  means that an agency cannot ignore thei forest by focusing exclusively oni thet trees. But it does not follow that the agency can look only at thei forest and not thei trees (so to speak), ift the individual components not studied are significantly different from each other in their environmental effects, and the differences between components could make a difference toi thei informed decision-making Here, however, the: scope oft the issues to be decided affects whether there is informational value, for the agency's decision-making, in studying evacuation effects on DPP separately. Petitioners do not contest either the proposition that the overall Project must be adopted to comply with state mandates, or the proposed: size oft the Project in terms of total residential units to be added. Moreover, they expressly disavow any contention that the effects on evacuation and wildfire safety could be improved by shifting some of this total added capacity from the DPP to other locations within Orinda. These undisputed points, taken together, reinforce that there is little ifanyi informational value to decision-makers in studying the evacuation issues in the DPP separately from the Project as a whole, or by comparing the evacuation issues ini the DPP with 4. Whether the EIR Adequately Explains the Significance of the Project's Impact Tot the extent Petitioner argues that the EIR's wildfire impacts analysis and conclusions in WFR-1 only evaluated the wildfire impacts on evacuation from a portion of the Project (HE-5) and failed to adequately explain or consider impacts of the Project asa whole, including the DPP, on impacts on evacuation in the event ofa a wildfire, that is a distinct issue. This latter issue is what Petitioner asserts is the defect in this aspect of the EIR. (Petn. Suppl. Brief p.7, 1I.22-25.) The latter issue does not run afoul oft the piecemealing prohibition and is raised in the POB. Petitioner argues that there is no way fort the public to determine from the EIRI how, where, or to what extent, development facilitated by thel Project in any area outside of HE-5, and especially within the DPP, will adversely impact evacuation and response." (POB p. 18, II. 1-4.) (See also POB p. 17, 11.3-7 [arguing Save Lake Tahoe required to estimate the additional residents to be added "as a result of the Project" and evaluate "the resulting impact on emergency response and evacuation by both current and future residents during a wildfire"], and p. 17, 11.8 8-10 ["To the extent that Respondent argues that thel EIR does in fact evaluate wildfire evacuation and emergency response impacts resulting from the Project, the analysis is deficient."1.) The City contends the EIR: sufficiently addressed evacuation issues ini the wildfire impacts with respect toi the Project as a whole, which includes the DPP, to meet CEQA's informational requirements. The Court addresses this issue. Petitioner contends the EIR does not provide sufficient information regarding the "nature and magnitude" oft the significant impacts of the Project on evacuation andi that the EIR did not provide decisionmakers and the public' 'sufficient analysis to intelligently consider" the wildfire impacts of the Project which is what CEQA requires. (Sierra Club, 6 Cal.5th at! 519; San Franciscans The City explained its methodology for assessing wildfire impacts oft the Project. The EIR  that CEQA: seeks to enable.  evacuation issues in other parts of the Project.  on Evacuation or Evacuation Plans as a Program EIR  for Livable Neighborhoods, 26 Cal.App.5th at 609.)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.org  K.E Bieker Court Executive Officer  states the impacts were evaluated (a)' using FHSZ mapping for Orinda, aerial imagery, and topographic mapping," (b) information on weather patterns affecting the' "spread and magnitude" ofw wildfires, (c) the proposed Safety Element goals and policies, and (d) the general rule that CEQA does not require an analysis of the impact of the environment on al Project unless the Project will exacerbate existing environmental hazards, which the City also cites int the "methodologies" section of the Impact Analysis on wildfires. (California Building Industry Assn., 62 Cal.4th at 377-78; Newtown Preservation. Society V. County of El Dorado (2021) 65 Cal.App.5th 771, 788; AR: 506.) Therefore, the City states, "impacts under thet thresholds identified below would only be considered. significant ift the proposed project risks exacerbating those existing environmental conditions." (AR 506 [emphasis added).) There is no dispute the City concluded the Project impacts  met the threshold ofs significance thus stated. (AR! 509.)  a. Sierra Club Decision  Though the Court relies on the standards Sierra Club V. County of Fresno sets forth for meeting thei informational requirements of CEQA, the case is distinguishable. The EIR provided estimated figures at buildout oft the Project regarding various types of pollutants that would be generated by the project, as well as the figures the county considered to be the thresholds of significance fore each pollutant, and the EIR concluded the project would exceed those thresholds, causing significant effects on air quality that could only be partially mitigated bya a proposed mitigation measure. (Sierra Club, 6 Cal.5th at 517.) The EIR: alsoi included a general discussion of the adverse health effects of each type of pollutant, but the EIR did not connect the general adverse health effects of the pollutants to the levels of pollutants the project was expected to generate. (Id.) The Court held the EIR's discussion did not meet thei informational requirements of CEQA, concluding "Because the EIR as written makes iti impossible for1 the publict tot translate the bare numbers provided into adverse health impacts or to understand whys such translation is not possible at this time (and what limited translation is, in fact, possible), we agree with the Court of Appeal that the EIR's discussion of air quality impacts ini this case was inadequate." (Id. at 521 [explaining, "The task fori real partyi in interest and the County is clear: The EIRI must provide an adequate analysis toi inform the public how its bare numbers translate to create potential adverse impacts or it must adequately explain what the agency does know and why, given existing scientific Sierra Club is distinguishable ini that the EIR is not providing bare numbers on thei increased population and proposed residents location without any explanation at all of how the location of the Project is related to evacuation routes and how existing constrained evacuation conditions in the City as a whole may only be worsened by adding substantial new population as a result of the Project. The City does connect the location of Project residence sites to evacuation routes and access toi those routes. (AR! 509-510.) The Evacuation Plan explains that proximity tot the evacuation routes and the number of intersections through which evacuees have to pass is what determines the level of constraint in evacuation. (AR: 16884, 16889.) In this case, the EIR in as sense does the opposite: the EIR presents qualitative conclusions as to adverse effects without the quantitative datai to back up the analysis. While the quantitative data may not be mandated in order for the EIR  constraints, it cannot translate potential health impacts further."J.)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.Ors  K. Bieker Court Executive Officer  top provide adequate information as set forth below ini the Court's analysis of the Save Lake Tahoe decision, the EIR: still must provide sufficient factual details regarding thei identification of adopted evacuation plans that are impaired, an explanation of why the Project will cause impacts that are significant under the threshold of significance while still being' "consistent" with the unspecified evacuation plans, and a reasoned analysis explaining why the Project characteristics create significant, unavoidable impacts on evacuation in the event of a wildfire despite proposed  mitigation.  b. Save Lake Tahoe Decision  In Save Lake Tahoe, the Court found: sufficient from an informational standpoint an EIR which was supported by a quantitative evacuation analysis that calculated estimated evacuation times for residents with the new proposed project andi in light of existing development. (Save Lake Tahoe, 75 Cal.App.5th at 137 ["The EIR recognized that the project would add people to the area, which would increase the amount oft time to complete an evacuation. But it concluded the impact was not significant for a number of reasons."J.) As specific plan amendment to allow new development in a parcel was ati issue. Though no specific development plan was proposed, in conjunction witht the certification of the EIR, the county also approved a development agreement with the owner/developer. (Id. at 80.) The Court also noted that the county had adopted an evacuation plan fort the area which was identified int the EIR. (Id. at 133.)  The county'sconclusions that the Project would not exacerbate risks from wildfires by impairing the implementation of or physically interfering with an evacuation plan, which was the threshold ini that case (id. at 133), was based on a number of factors described in the EIR. Those factors, some of which are discussed ini the EIRi int this case, included (a) the availability of vehicle access and evacuation routes, (b) that the number of estimated vehiclet trips at build out represented an' "incremental" increase ini traffic volumes but not enough to interfere with use of the highway evacuation route, (c) that the project would not modify or cutoff any existing evacuation routes, (d) that the CCRs would require a project-specific fire protection and emergency evacuation plan to be developed with designated emergency roads and at least two ingress and egress routes for each parcel, and (e) that the CCRs would also the homeowners association to construct an amenity that could be used as a shelter-in-place location. (Id. at 133-34.) In addition, the county relied on at traffic consultant study which, as in this case, was prepared separately from and after issuance of the draft EIRI but was discussed ini thet final EIR. (Id. at 135.) The study provided estimated evacuation times from the proposed project based on full occupancy oft the The Court found the EIR: sufficient to inform the public and decision-makers about the Project's wildfire impacts. "The EIR's analysis provides a reasonable explanation under modeled circumstances of how the project will affecti its residents' ability to evacuate and emergency responders' ability to access the area and the site." (Id. at 140.) Thet final EIR also specifically explained to decision-makers and the publici that merely adding people to an area increases evacuation time, but does not necessarily increase safety risks because emergency personneli take into account the time needed for evacuation when emergency personnel determine whent toi issue  residences at 1.31 to 1.51 hours. (Id.)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.or  K.B Bieker Court Executive Officer  evacuation orders and what locations to order evacuated. (Id. at 135.) The Court rejected the criticism of the EIR as insufficient based on its failure to address "how much the project would  increase evacuation times." (Id. at 138 emphasis added).)  Petitioner argues that the City here should have done what the county didi in. Save Lake Tahoe byl having a quantitative: study prepared of the evacuation times from the Project locations, including the DPP. The EIR int that case was issued in the context ofar project sufficiently specificto include a development plan with specific conditions on the communityt to be developed, not in the context of a program EIR addressing general plan and: zoning amendments to allow potential future housing developments that may or may not materialize. Further, the Court did not state or hold that a quantitative analysis of evacuation times for the Project was essential to provide the information mandated by CEQA, but rather merely found the county properly exercised its discretion to choose that methodology (modeling in that case) for assessing thei impact and that the modeling among otheri factors supported the sufficiency of the discussion of wildfire impacts Oni the other hand, while. Save Lake Tahoe does not hold a quantitative analysis on evacuation times is mandated, it demonstrates that the EIRI has to include a sufficient information toa adequately explain whether thei impact on the wildfire hazards are: significant and how or why they are significant, which the agency did not onlyi in its quantitative evacuation analysis but also in its qualitative explanation oft the relationship oft the Project to evacuation in the event of a wildfire. The EIRI ini this case does not have the explicit explanations regarding the evacuation impacts of the Project described in Save Lake Tahoe, including in responses to comments on the draft. In that case, the agency cited that thei incremental increase in vehicle trips would not result ini traffic volumes sO significant they would physically interfere with the use oft the evacuation route, and it explained that even if more people have to evacuate, safety wildfire risks may not be exacerbated because evacuation orders would account for the additional population andi time needed to evacuate. The agency provided specific factual and analytical detail to explain its conclusion that the impact oft the project in that case would be less than significant on evacuation, includinga Even without the quantitative assessment of evacuation times from the project in that case, the analytical route of the agency in its assessment of wildfire impacts on evacuation was more explicit and less opaque than that contained int the EIR and City responses in the FEIR ini this case. The EIRi in' WFR-1 does not have the kind of clear and specific analysis set forth in: Save Lake Tahoe; it does not even include expressly the analysis the City makes more. specifically and clearly ini its briefs that adding any population to the City will cause significant impacts because of the geographic characteristics of the City and limited evacuation routes available. The EIR: should either include a quantitative analysis that explains the City's reasoning that the Project has significant, unavoidable impacts on evacuation, or give a reasoned explanation of why more quantitative detail is either not available or not necessary. Instead, the City identifies the characteristics of the DPP and other Housing Element sites ini relation to likely evacuation routes (AR! 509), then refers generically to the Safety Element Update mitigating of some evacuation impact the impact and  and the county's conclusion the project impact was not significant.  quantitative and qualitative analysis that supported that reasoning.    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cC-cours.OIE  K.E Bieker Court Executive Officer  BART assisting with evacuation, but then concludes "future development under the proposed project may result in impacts,"withi the sole specific analysis referring to evacuation on "narrow hillside roadways," which is not required fori the Project as awhole but only certain segments. The Court's discussion below concerning the deficiencies in Mitigation Measure WFR-1 also highlight the missing analytical route between the Project and its significant impact in' WFR-1. The EIRi is missing the analytical route connecting facts regarding the proposed Project and the significant and  unavoidable impacts on evacuation plans, unlike: Save Lake Tahoe.  Save North Petaluma River Decision  In Save North Petaluma River and Wetlands V. City of Petaluma (2022) 86 Cal.App.5th 207, the Court found that the EIR: satisfied CEQA's informational requirement regarding public safety concerns. The Court stated, "IT]he EIR identified the relevant provisions int the City's emergency response plan and took into account. specific information about the Project site and the actual threat of flood or fire at the site. Drawing from such information, the EIR1 then considered whether the Project would '[mpair implementation of or physically interfere with an adopted emergency response plan ore emergency evacuation plan' (Guidelines, appen. G, italics added) and concluded it would not. This was sufficient to demonstrate the analytic route from: specific underlying evidence Thei threshold stated in this decision is the same threshold stated in Save Lake Tahoe. Notably, the Cityi int this case did not refer to impairment of the 'implementation" of an evacuation plan or "physical" interference with an evacuation plan. Unlike. Save North Petaluma River, the City here failed to identify any specific or applicable evacuation plan in its Impact WFR-1 discussion, which is thet foundation and starting point for the analysis of the threshold ofs significance and for the public and decision-makers to be able to draw the conclusion that an adopted evacuation plan issi significantly impaired, the stated threshold ofs significance. The reference to the' "County's Emergency Operations Plan" is stated ini the context of 'emergency management organization for emergency response" and does not explain ift that plan includes an "evacuation plan" and ifso, if that is the evacuation plan the Project either impairs (or is consistent with). (AR 510.) Further, whilei the City explains at AR! 509 where the Project components are physically located in relation toi the primary evacuation routes from those locations (which is specific information about the Project site"), the EIR does not include specific information and meaningful analysis about relationship of those facts tot the significant, unavoidable impact of the Project as a whole on evacuation. The onlys specific analysis pertains to population evacuating on "narrow hillside roadways." (AR 510.) That evacuation scenario applies only to a portion of the Project; yet, the City insists the Project as a whole has a significant impact on evacuation without explaining and analyzing either (a) how evacuation on narrow hillside roadways from one portion of the City ori the Project could impact the rest of the City or the Project, or (b) the significant impacts of the Project  tot the ultimate conclusion. [Citation omitted.]" (Id. at 230 [emphasis added).)  on evacuation is limited to certain components.  d. BerkeleyJets Decision  Inc contrast, in Berkeley. Jets cited by Petitioner, the Court found that the agency made no    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cecourts.or  K.E Bieker Court Executive Officer  good faith effort to assess thei increase ini toxic air contaminants and their human health risks, and thel EIR's analysis of human health risks from the contaminants failed to provide adequate information under CEQA. (Berkeley. Jets, 91 Cal.App.4th at 1371.) The EIR: stated there was no "standard for evaluating the significance of the risk associated" with the contaminants at issue that was "universally. accepted." " (Id. at 1368, 1371.) The EIR concluded the significance oft the impact could only be' "qualitatively discussed" and considered by decisionmakers but a' "formal determination of the significance of the impact" was "unknown." (Id. at 1368.) The agency nevertheless concluded thel human health risk was "significant" but that overriding considerations warranted project approval. (Id. at 1368-1370.) The Court held the EIR violated CEQA, certification oft the EIR was a prejudicial abuse of discretion, and the agency had to' 'meaningfully attempt to quantify the amount of mobile-source emissions that would be emitted from normal operations conducted as part of the [project), and whether these emissions will result in any significant health The Berkeley. Jets decision addressed: a long-term expansion of the Oakland airport, but the specific issues the Court found deficient in the EIR: are ones in which scientific assessment is customary: and clearly possible. Though the Court rejected the' 'qualitative" analysis by the agency int that case, nothing in the decision indicates the qualitative discussion was supported byi facts or evidence that made the qualitative analysis meaningful; to the contrary, the agency determined the significance oft the human health effects of toxic contaminants under the circumstances were unknown and moved from that to a determination there was a significant impact.  risks." (Id. at 1371.)  e. Application to City's EIR and Conclusions as to Issue 1  The City's analysis of the impacts stated in' WFR-1 at AR: 509-510 are cited and quoted above. The City refers specifically to evacuation on "narrow hillside roadways."( (AR: 510.)The Cityi in its Supplemental Brief directs the Court toi its analysis of Project alternatives ini the EIR1 toi further bolster its position that the EIR explains that the Project as a whole will significantly impair evacuation int the event of a wildfire because the City in its entirety has evacuation constraints, and the Project is adding more residents who will need to evacuate int the event of a wildfire. (See AR 495-496 [setting susceptible to wildfires), AR 509 [describing location of new development in relation to access to evacuation routes), 541-542, 568-572, 594-596.) The City reiterates the wildfire impacts WFR-1, the project alternatives analysis int the EIR, and the Evacuation Analysis all explain that the evacuation constraints are less acute in the DPP because of its proximity toi the SR- 24 onramps and more problematic in other Housing Element locations that are further from the primary evacuation routes, closer to or within thel high fire hazard zones, and require evaçuees to proceed farther and through more intersections to reach the evacuation routes. The informational defiçiency based on the ambiguities in the EIR's designation of the threshold of significance and conclusion the Project will signifiçantly impair evacuation plans while stating the Project is "consistent" with the unidentified plans is not cured by those other portions of the EIR, nor does the impact WFR-1 analysis refer to or incorporate the later discussions on project alternatives alerting a reader that they must review those other sections to understand the wildfire impacts on  evacuation ini impact WFR-1.    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.Or  K.E Bieker Court Executive Officer  The City acknowledges the specific evacuation modeling assessments in terms of evacuation times in the Evacuation Analysis pertained to the City's current residents and not with the buildout of thel Project. Instead, the Evacuation Analysis made a' 'qualitative" analysis regarding evacuation based on al buildout of the Project. (Compare AR 16888-16903 to AR 16884 cited by the City and AR: 16921-16925.) (See also AR 15893 and 49305 cited at Reply p. 12.)The Berkeley. Jets case rejected thes sufficiency ofa a' "qualitative" impact assessment undert the circumstances of that case, but fori impacts which seem particularly suited to technical, scientific assessment in orderi to adequately inform the public and decision-makers of the level of anticipated toxic contaminants The Court does not view the Berkeley Jets decision, or Save Lake Tahoe, as necessarily compelling a quantitative calculation ofe evacuation times from the Project in this case. The Court is aware the EIR here is a programmatic level EIR which does not address any actual proposed development or specific evacuation issues which may be subject to a multitude of variables and factors such as the number, configuration, location, setting, and design. Perhaps the City could conclude with reasoned analysis that those variables on the development that will actually occur in the various Project areas would make a quantitative evacuation timing analysis unhelpful or unreliable and therefore unnecessary. Iti is not clear to the Court that the "magnitude" of the Project's impacts on evacuation necessarily needs to be stated in quantitative terms under the circumstances givent the nature of the Project being studied and approved if the City can express the nature and magnitude of the Project's significant impact by other means, includinga  from the project and their effect on human health.  meaningful qualitative explanation.  Oni the other hand, even ifa qualitative discussion of the Project's evacuation impact is sufficient, for several reasons the City's EIR does not contain adequate information in this case to inform the public and decision-makers, including those who did not participate in its preparation, about the evacuation impacts of the Project. The Court has already highlighted thei inconsistency or at least significant ambiguity int the City's stated threshold of significance, express statement of the significance of the impact in' WFR-1, andi the City's position that the Project does noti impair any evacuation plans. Unlike the EIR's addressed in Save Lake Tahoe and Save North Petaluma River, despite the stated threshold of significance and: significance finding which expressly and implicitly are made in reference to an adopted evacuation plan, the EIR does not identify what evacuation plan or plans apply that are: subject tot thet threshold of significance and the significance finding and then explain clearly and unambiguously how the Project interacts with those plans. Ini its briefing, the City explains why the Project as a whole will significantly affect evacuation because the Project has the potential to add significant population to a City that already has serious wildfire risks, in some areas especially vuinerable topography and narrow hillside roads, and limited evacuation routes that are already congested by existing population, an explanation thati is not specifically expressedi ini the Impact WFR-1 oft the EIR and at best obliquely stated in the response to comments on the DEIR. The threshold of significance issue and determination in WFR-1 is that the Project, which would int theory mean the Project as a whole, including all of its components, will significantly impact evacuation. That analytical route is missing from the EIR.    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-cours.OIg  K.E Bieker Court Executive Officer  Thei most specific statements about why the Project impacts are: significant and why the Project exacerbates the risks from wildfires in WFR-1 refer only to temporaryi impacts from construction and residents evacuating on "narrow hillside roadways."( (AR519.) The City! has also cited its CEQA finding that the' "congestion induced from additional residents at these Housing Element Sites during an evacuation" may be reduced by the proposed mitigation measure, but "iti is not possible to ensure that the project would not substantially impair an adopted emergency response plan or emergency evacuation plan," which also appears to apply only to HE-4 and HE-5 as thei finding follows the description of Mitigation Measure WFR-1 which is expressly limited to those sites. (AR32.) When those statements are coupled with the explicit limitation of Mitigation Measure WFR-1 to HE-4 and HE-5 in the EIR as drafted, discussed further below, they create, ata a minimum an ambiguity, or worse, inadequate information about the Project impact on evacuation as a whole. They leave the reader with thei impression the' 'significance" determination only may involve the two specified sites outside the DPP, though the City reiterates in its briefing that the significant impacts finding applies to the Project as a whole, including the DPP. The City argues that its WFR-1 discussion studied the impacts of the Project as a whole and concluded the Project as a whole will have significant, unavoidable impacts, perhaps because merely adding significant residents to the constrained City willi impact evacuation including the time needed to evacuate by allr residents, most of whom may ultimately have to pass through intersections downtown to reach onramps to SR-24, an explanation also not explicitly stated in WFR-1. However, a reasonable interpretation of the discussion in WFR-1 coupled with the City's finding at AR: 32 is that HE-4 and HE-5 only will have significant and unavoidable impacts on evacuation that can be partially mitigated by Mitigation Measure WFR-1, applicable solely to HE-4 and HE-5 by its terms. Impact WFR-1 does not explain whether the fact some portions of the population with the Project will have to evacuate on narrow hillside roadways willi impact evacuation by the Project as a whole everywhere, or whether the Project has significant impacts on evacuation City-wide simply by adding so much population to the City. As a result, for all of these reasons, the EIR fails to provide a clear analysis and explanation, even on a qualitative basis, of how the Project as a whole will exacerbate the risks of wildfire hazards because it significantly impairs The City argues there is no substantial evidence ini the record that adding population and housing ini the DPP would have a worse impact on wildfire risks and evacuation plans than adding population or housing in any other portions of the City. (Resp. Brief p. 24, II. 4-15; Newtown Preservation. Society V. County of El Dorado (2021) 65 Cal.App.5th 771, 785 [holding that resident comments did not provide "substantial evidence raising ai fair argument that despite setting forth the fire evacuation impact arising from the project's closure of Newtown Road bridge for a period of time during construction andi the mitigation by planning for multiple evacuation routes, there remains as significant impact to the safety ofa area residents").) The arguments regarding "fair argument" as tot the impacts of the DPP portion of the Project seem beside the point, given that (a) the Cityi itself concluded that there is ai fair argument that the Project as a whole, which includes the DPP, might have a significant impact on evacuation plans, such that the City elected to includea study oft that potential impact int the EIR (AR 506), and (b) the City contends it concluded based on  evacuation.    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.OTE  K.E Bieker Court Executive Officer  its own significance standard that the Project as a whole, whichi includes the DPP, will exacerbate Respondent City also argues that substantial evidence supports the City's conclusion that the Project will have' "significant and unavoidable impacts on emergency" wildfire evacuation." (Resp. Brief p. 20, II. 19-20.) Whether substantial evidence supports the City's conclusion regarding significant and unavoidable impacts is a different issue from whether the EIR: satisfies the informational requirements of CEQA. As the Court explained in Sierra Club, "The determination whether a discussion [of potential significant environmental impacts] is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency's factual conclusions. [J The ultimate inquiry, as the case law andi the CEQA guidelines make clear, is whether the EIR includes enough detail 'to enable those who did not participate ini its preparation tou understand andi to consider meaningfully thei issues raised by the proposed project." [Citations omitted.]" (6 Cal.5th at 515.) "Whether an EIRI has omitted essential information' is a procedural question subject to de novo review. [Citations omitted." (Banning Ranch, 2 Cal.5th at 935.) "Noncompliance with substantive requirements of CEQA or noncompliance with information disclosure provisions "which, precludes relevant information; from being presented to the public agency. : may constitute prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would have resulted if the public agency had complied with those provisions." (S 21005, subd. (a).)"" " (Sierra Club, 60 Cal.5th at! 515 [quoting County of Amador V. EID Dorado County Water. Agency (1999) 76 Cal.App.4th 931, 945-46 and stating failure to comply with CEQA in omitting necessary material toi informed decision-making  existing environmental conditions as to wildfire risks (AR 506,509-510).  and public participation is prejudicial error (italics in original)l.)  "CEQA contemplates consideration of environmental consequences at the' 'earliest possible stage, even though more detailed environmental review may be necessary later.' [Citation, internal quotation marks omitted.]" (Rio Vista Farm Bureau Center, 5 Cal.App.4th at 370.)' While future individual projects may require environmental review, it is not clear tot the Court whether any future environmental review of ani individual project would assess the overall impact of al buildout oft the Project as a whole in that cumulative impacts analyzed in an individual project EIR under Guidelines S 15023.5(b). and Public Resources Code S 21083(b) may be limited to projects under construction, approved projects not yet constructed, projects under environmental review, and projects formally announced by a developer. (See. San Franciscans for Reasonable Growth V. City & County of Sani Francisco (1984) 151 Cal.App.3d 61, 74.) (Reply p. 8, fn. 1.) Indeed, it seems likelya future project may rely on the current EIR as evidence the wildfire impacts on evacuation for the entire Project had already been considered, as the City contends, making the informational inadequacies and clarifications cited above important to address in this EIR. (See, e.g., Pub. Res. Code 5 21083.3 and 14 Cal. Code Regs. S 15183 [environmental review of projects consistent with general and specific plans and zoning only required fori impacts not analyzed int the prior planning  orzoning EIRS].)  B. Issue 2: Challenges Regarding Mitigation Measure WFR-1  CEQA mandates that the City int the EIR mitigate all significant impacts found in the EIRI toa    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.org  K.E Bieker Court Executive Officer  level of less than significant. (Sierra Club, 6Cal.5th at 525; Pub. Res. Code S5 21002.1 subds. (a) and (b) ["(a) The purpose of an environmental impact report is toi identify the significant effects on the environment of aj project, to identify alternatives tot the project, andi to indicate the manner in which those significant effects can be mitigated or avoided. [9l (b) Each public agency shall mitigate ora avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so." (emphasis added)); 21100 subd. (b) [an EIR shall include "a detailed statement setting forth. : [9l (1) All significant effects on the environment of the proposed project. [7] (2) In a separate section: [9l (A) Any signifiçant effect on the environment that cannot be avoided ift the project is implemented.1). As the California Supreme Court has explained, "ift the County were to approve a project that did not include ai feasible mitigation measure, such approval Petitioner contends the mitigation measures analyzed and adopted in the FEIR are flawed for several reasons. The Court will address onlyt the general argument that Mitigation Measure WFR-1 is flawed because it addresses only HE-4 and HE-5and not the wildfire evacuation impacts of alli the proposed additional housing and residents in all Housing Element locations, including the DPP, based on Petitioner's failure to exhaust its administrative remedies as to other arguments  would amount to an abuse of discretion." (Sierra Club, 6 Cal.5th at 526.)  made in its POB.  Mitigation Measure WFR-1 addresses multiple measures, including making housing in those locations protected against wildfire toi the extent possible by meeting construction requirements if residents are required to' "shelter in place."To the extent Petitioner contends that Mitigation Measure WFR-1 is improper based on its shelter-in-place provisions, that argument is undermined byt the Court's analysis in Save Lake Tahoe. In Save Lake Tahoe, the Court rejected the project opponents' argument that thes shelter-in-place portion of the proposed project was not a sufficient "substitute for an evacuation plan,"stating it was not proposed as a substitute for evacuation but rather as' "a contingency ift the authorities order residents to shelter in place and not evacuate." Mitigation Measure WFR-1 and the portion of the FEIR in which the City responded to comments on thei inadequacy of the evacuation analysis both address only the wildfire risks and evacuation impacts as to HE-4 and HE-5 and mitigation measures fori impacts on HE-4 and HE-5. (AR 510 [Mitigation Measure WFR-1 expressly limited to measures for approval of projects on Housing Element Sites HE-4 and HE-5] and 889.) However, the City contends that the Safety Element which was updated and approved as part oft the Project also addresses mitigation of the impacts on evacuation in Impact WFR-1. In addition, in the Respondent's Supplemental Brief, the City acknowledges what it contends is an ambiguity int the EIR: as to whether Mitigation Measure WFR-1 was intended to apply not just to HE-4 and HE-5 but to all Housing Element locations, including the Petitioner cites Impact WFR-2, which addresses thei impact of the Project on exposing property and residents to risks of property damage and personal injuryf from wildfires. Petitioner argues that the discussion of the Safety Element goals and policies that would mitigate risk of loss of property and injury to persons from wildfires does not address the wildfire impacts on  (Save Lake Tahoe, 75 Cal.App.5th at 141-42.)  DPP.    Superior Court of California, Contra Costa County  Department: 12 925-608-1000 www.ce-courts.ore  K.E Bieker Court Executive Officer  evacuation plans foundi to be significant in Impact WFR-1 and that the Safety Element policies and goals are noti incorporated into any mitigation measure in any event. (POB p. 13, 11.3-15.) Impact WFR-2isa a separate analysis and does not address evacuation plan impacts nor was it intended to address that issue byi its terms, as the City argues vigorouslyi in its initial Respondent's Brief. (Resp. Brief p. 23, II. 3-11 ["WFR-2 does not purport to address emergency response and evacuation impacts; those impacts are discussed in impact labeled' 'WFR-1."1.) Essentially, the City argues Impact WFR-2 and Mitigation Measure WFR-2 are: separate and distinct from the evacuation plan impacts discussed in Impact WFR-1 and Mitigation Measure' WFR-2 and are not relevant to the assessment of Impact WFR-1and the sufficiency of mitigation measures addressing evacuation, which is supported byt thei text of the DEIR. (AR! 513-514.) (See also AR 888-889 [stating the DEIR concludes thate even with the statutes and regulations aimed at reducing' "evacuation route impacts and other wildfire risks" the Project "could still result in significant impacts due to construction and operational traffic from new development potentially contributing to congestion during evacuations (see Draft EIR page 4.14-15 [AR 5091) and duei tot thet fact that it is not possible to fully protect people and structures from the risks of wildfires (see Draft EIRI Page 4.14-19 [AR5 513])."  (Emphasis added.)).)  Mitigation Measure WFR-1 byi its terms unambiguously applies only to HE-4 and HE-5. The City contends that Mitigation Measure WFR-1 was intended to apply to the Project as a whole and alll Housing Element components. Inf fact, the discussion of Impacts WFR-2, which the City expressly Goals and policies in the updated Safety Element would mitigate the risk of loss of life, injury,and propertyl loss from wildfires. Policies S-24 through S-38 would maintain MOFD fire protection standards, continue wildfire mitigation strategies such as fuel breaks in open spaces and fire access easements, require proposed development to have adequate access fori fire and emergency services, and maintain evacuation routes in the event of an emergency, Witht the exception of Housing Element Site HE-5, development facilitated byt the project would not exacerbate existing environmental conditions; however, existing codes and regulations cannot fully prevent wildfires from damaging structures or occupants. Therefore, Mitigation Measure WFR-lwould be required to reduce the risk of wildfire during proiect construction for future development on all Housing Element and DPP sites. Mitigation Measure WFR-2, which includes project siting considerations, would apply to development on all Housing Element and DPP  disclaims applies to Impact WFR-1, provides some support for thati intention.  Sites." (AR! 512 [emphasis added).)  The foregoing discussion of wildfire impacts WFR-2 also suggests, as the City contends, the Safety Element update was intended by the City to be a mitigation measure applicable to' WFR-1. The Safety Element Update potentially applicable to wildfire impacts generally is part of the methodologythe City chose to assess the significance of the wildfire hazards impacts of the Project.  (AR! 506-509.)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.e-courts.Or  K.Bieker Court Executive Officer  The Safety Element Update was not incorporated as a mitigation in Mitigation Measure WFR-1 as noted by Petitioner, but the Safety Element Update in1 this case is part of the same Project being reviewed int the FEIR and approved by the City. The City points out that the CEQA Guidelines specifically allow the City to adopt mitigation measures by incorporating them into a plan or policy. (14 Cal. Code Regs. $15126.4 subd. (a)(2) ["Mitigation measures must bei fully enforceable through permit conditions, agreements, or other legally-binding instruments. In the case of the adoption ofa a plan, policy, regulation, or other public project, mitigation measures can Public Resources Code S 21081 prohibits a public entity from proceeding with a project ifa certified EIR identifies significant effects on the environment unless the agency finds that "Ichanges or alterations have been required in, ori incorporated into, the project which mitigate or avoid the significant effects on the environment" and overriding considerations warrant proceeding with the project even if all significant effects have not been fully mitigated. (Pub. Res. Code S 21081 subds. (a) and (b) [emphasis added).) Public Resources Code S 21081.6states in pertinent part: "A public agency: shall provide that measures to mitigate or avoid significant effects on the environment are fullye enforceable through permit conditions, agreements, or other measures. Conditions of project approval may bes set forth in referenced documents which address required mitigation measures or,in the case of the adoption ofa plan, policy; regulation, or other public rorct.byincorporating the mitigation measures into the plan, policy, regulation, or project Based on these statutes andi the Guidelines, the Safety Element Update was not required to be set forth as as separate mitigation measure since the Safety Element Update and its implementation are part oft the Project and would be adopted components of the City general plan and legally binding as provided in the statutes. However, that fact does not excuse the Cityf from including an analysis and explanation of how the lengthy series of stated goals and policies tol be included int the Safety Element Update reduce the significant impacts found in impact WFR-1 on evacuation plans that the Project as a whole will have even with the adoption oft the Safety Element The Cityi in its brief cites various components of the Safety Element that address evacuation issues throughout the City which would include all areas that are part of the Project including the DPP. Those measures include maintaining the accessibility of evacuation routes across the City as a whole, revising and improving the evacuation analysis in the Safety Element ini future updates, identifying and maintaining additional evacuation routes in coordination with Caltrans and first responders and identifying roads not in compliance with fire safety regulations and bringing them into compliance. (Resp. Brief p. 29, II. 16-26 [citing AR: 16803-16809 [Safety Element adopted).) However, the only general statement in the discussion of WFR-1 on the role oft the Safety Element  bei incorporated intot the plan, policy, regulation, or project design."].)  design.' " (Pub. Res. Code $21081.6(b) [emphasis added).)  Update.  Update to mitigate impact WFR-1i is:  Goals and policies in the proposed updated Safety Element would assist in coordination and preparedness for emergency response. Policies S-11 through S-10, outlined in Section 4.14.2 Regulatory Setting, would ensure coordination among    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.ce-courts.or  K. Bieker Court Executive Officer  federal, state, and local plans and agencies, adequate public and interagency communication during hazard events, and providing evacuation assistance for those with limited mobility or lack of access to a vehicle for evacuation.  (AR 510 [emphasis added).)  The only reference to lesseningi the significant impact oft the Project on evacuation isi in relation tot those who need evacuation assistance because of mobility issues or lack ofa a vehicle in WFR-1. The discussion does not identify which policies and goals fromt the long list set forth from the Safety Element Update at AR 506-509 address that aspect of evacuation assistance. Those with mobility issues and lack of a vehicle would also. seem to be only at fraction oft the City's population, including at fraction oft the new residents expected to be added byt the Project. If the Cityi is relying on other policies and goals from the Safety Element Update to mitigate impact WFR-1, thel EIR does not identify them and explain how they lessen the Project impact, eveni ifa significant impact will Further, the City apparently does not take the position that implementation of the Safety Element Update is sufficient to mitigate the: significant impacts oft the Project as a whole, or that as ar result oft the adoption of the Safety Element Update, the Project impacts found in' WFR-1 will be limited to HE-4 and HE-5 and that is why Mitigation Measure WFR-1 only addresses by its terms HE- 4 and HE-5. Rather, the City seems to acknowledge that Mitigation Measure WFR-1 was intended toa apply tot the Project as a whole, notj just HE-4 and HE-5, because that mitigation is needed to mitigate at least in part the significant adverse wildfire impacts described WFR-1, which as the City vigorously argues applies to the Project in its entirety. Based on the discussion in connection with WFR-2 quoted above, the Court accepts the City's position that the Cityi intended Mitigation Measure WFR-1 to apply to all Project locations, including all sites in the Housing Element and the DPP, as the City states ini the EIR: at AR: 512. While that may have been the City's intent, that is not Ins summary, fort the reasons stated, the City did not havet to make the Safety Element Update a mitigation measure like Mitigation Measure WFR-1 andi it has very generically identified the Safety Element Update as mitigation fori impact WFR-1ini its discussion of impact WFR-1 which iss sufficient. (Pub. Res. Code 55 21081 and 21081.6: subd. (b); 14 Cal. Code Regs. S 15126.4 subd. (a)(2).) There are procedural violations of CEQA int the EIR, however, because (a) the explanation of how the Safety Element Update mitigates thei impacts of WFR-1 is inadequate, lacking any identification of any specific goals or policies from the lengthy list included in the methodologies that willl be mandated and binding and lacking any description of the City's analytical route for concluding those goals or policies will mitigate the Project impacts on evacuation found in WFR-1; and (b) the City acknowledges that Mitigation Measure WFR-1to be adopted by the City to mitigate thei impacts of the Project as a whole does not apply to the Project as a whole but only one segment (HE-4 and HE-5), despite the City's now stated intention that the measure be applicable to all components oft the Housing Element. Further, assuming it was the City's intention that Mitigation Measure He-4 and HE-5 apply to all Housing Element components including the DPP, there is no explanation ini the DEIR or the FEIR with the City's response to public comments as  remain from the Project that requires additional mitigation.  what the EIR: states. Thisi is a proceduralfailure under CEQA.    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cecourts.ors  K.E Bieker Court Executive Officer  to how Mitigation Measure WFR-1 will mitigate the Project impacts in components of the Housing  Element other than HE-4 and HE-5, another informational deficiency.  Issue 3: Challenges Regarding Statement of Overriding Considerations  Petitioner contends the City's Statement of Overriding Considerations is' "flawed" because itist based on a defective analysis of the wildfire impacts and deficient analysis of mitigation measures. Specifically, Petitioner contends that as a result oft the informational deficiencies as to the wildfire impacts and mitigation measures for wildfire impacts int the EIR, the statement of overriding considerations is not supported by substantial evidence. (POB p. 22, II. 14-16.) Petitioner relies on one decision in which the failure to fully analyze the cumulative impacts of multiple projects skewed the agency's determination of the overriding benefits because it did not have a "true perspective on the consequences" of approving the projects int that case. (San Franciscans for Reasonable Growth, 151 Cal.App.3d at 79-80.) The case, however, is distinguishable from the  circumstances presented here.  Int that case, the city prepared separate EIRS to address the development of multiple high- rise commercial buildings in downtown San Francisco, but the EIRs failed to consider the multiple office building projects that were: similarly under review or anticipated to be developed in evaluating the cumulative impacts, such that it excluded millions ofs square feet of anticipated high- rise office development without justification in assessing the cumulative impacts in each EIR. (San Franciscans for Reasonable Growth, 151 Cal.App.3d at 77-80.) The Court specifically foundi that the understatement of the cumulative impacts for each specific development project was so severe that the agency did not have the' opportunity to deal with thet true severity and significance ofi its impacts : on the whole spectrum of environmental concerns potentially affected by! high-rise The City assumed, and based its determinations in the statement of overriding considerations on the assumption, that the Project would have significant and unavoidable impacts one evacuation plans by significantly increasing the housing units and number of residents in Orinda given its topography: and otheri issues described in the EIR1 that make Orinda vulnerable to wildfires, along with a number of other identified significant impacts deemed unavoidable. (AR4 40.) The City's specific CEQA findings in connection with the Project approval and Statement of Overriding Considerations include af find that the "congestion induced from additional residents at these Housing Element Sites during an evacuation" may be reduced by the proposed mitigation measure, but "it is not possible to ensure that the project would not substantially impair an adopted emergency response plan or emergency evacuation plan." (AR 32.) In context, that finding refers only to HE-4 and HE-5 causing congestion impacting evacuation, though the City contends the City actually concluded it is the Project as a whole that has a significant and unavoidable impact on wildfire hazards and evacuation plans, a conclusion that is consistent with the express statement of the threshold of significance and determination of significance in WFR-1. (AR506, 509.) The problem here is not separate from thei issues identified in the preceding sections, but rather is effectively derivative of those issues. To put the point algebraically, the analysis ofa  development. (Id. at 80 [emphasis added).)    Superior Court of California, Contra Costa County  Department 12 925-608-1000 www.cc-courts.Or  K. Bieker Court Executive Officer  statement of overriding considerations is deciding whether. X outweighs Y, where Xi is the benefits oft the Project and Yi is the environmental downside. Ifthe EIRI has not sufficiently identified Y, then necessarily it cannot have adequately explained the tradeoff between Xa and Yto! be made. Petitioner: argues for defectiveness of the statement of overriding considerations in a way that is not merely derivative, contending that there is insufficient detailed discussion of how the Project's benefits are deemed to outweigh its environmental downside. This part of Petitioner's argument, however, is unconvincing, because the Court is hard-pressed to see. just what kind of comparative analysis is supposed to be provided. The Project's benefits (e.g., providing more housing for California residents and complying with state housing mandates) are apples; the Project's environmental downsides (adverse effect on wildfire risk and evacuation) are oranges. There is no math or science that allows an EIR's analysis to quantify how one does or doesn't outweigh the other. That weighing of the plus-side apples against the minus-side oranges is a policy decision, the decision that the policy makers are to decide - not that an EIR can or should dictate to Ini this respect, also, the Court is constrained to observe that the policy makers' hands may bei more or less tied by the consideration (which petitioners do not contest) that the Project must be done because the state has mandated it. It is noti fort this Court, however, to make that determination. CEQA commands that the EIR must lay out all the environmental considerations ofa Project, including available mitigation, in sufficient detail fort the policy makers to takei those considerations into account. What the policy makers do with that mandated analysis is for1 them to Asar result of the ambiguities ini the EIR addressed above as to what the City concluded and why with regard to WFR-1 and the limitations of Mitigation Measure WFR-1 which does not on its face mitigate impacts of the Project as a whole, one of thei foundations for the Statement of Overriding Considerations is undermined. Because thei foundation is undermined based on the lack ofa adequate information and description of the mitigation related to WFR-1, the Court agrees the decision-makers did not have at true perspective from which the assess the Project benefits and significant adverse effects in order to make thei findings in the Statement of Overriding Considerations. (San Franciscans) for Reasonable Growth, 151 Cal.App.3dat7 79-80.) D. Issue 4: Challenges Regarding Vehicle Miles Traveled (VMT) Analysis  them.  determine.  Petitioner contends that the EIR underestimates the VMT generated by the Project in Impact AQ-1 and TRA-2, arguing that the City'sresponse to a public comment on businesses in the DPP includedi int the FEIR states incorrectly that there would be no demolition or displacement of commercial businesses. (POB p. 23,1 1I.2-14 [citing AR 887).) The City determined that VMT impacts are significant and unavoidable for purposes of the EIR, andi that specific projects outside certain limited areas would require a project-specific VMT analysis, since the EIRI is a program EIR which There are three gas stations that the DEIR indicates may be demolished ini the DEIR's Hazards and Hazardous Materials analysis which, if demolished, could produce potential hazardous  does not approve any specific development. (AR 458-462.)    Superior Court of California, Contra Costa County  Department: 12 925-608-1000 www.cc-courts.Or  K.Bieker CourtE Executive Officer  waste exposures which the City determined would not need to be mitigated based on existing statutes and regulations that would render any impact less than significant. (AR359,373.) Petitioner contends in reference toi those three sites that the EIR' contemplates significant demolition and/or displacement of existing businesses" based on the potential demolition of the three gas stations. (POB p. 23, II. 14-24.) Petitioner has not directed the Court to evidence that potential demolition oft the three gas stations out of approximately 90 DPP sites is' "significant," nor does Petitioner cite any evidence ini the record to connect the demolition of those gas stations to any material inaccuracyi in the VMT calculation. (AR 359, 373.) Petitioner cites no evidence in the record of what, ifa any, impact the demolition of thet three gas stations would have on Impact AQ-1 and TRA-2 and the) VMT calculated in the FEIR. Petitioner cites no evidence to support its claim that the demolition of thet three gas stations resulted ini the EIR underestimating VMT generated by the Project, nor does Petitioner contest the EIR's conclusion that the impact on' VMT oft the Project would be significant and unavoidable. Petitioner does not challenge the model used by the City to analyze VMTi in the EIR. (AR 455-456.) The model provides the basis fori the City's conclusions Given that the FEIR concluded that VMT impacts would be significant and unavoidable (AR 458), iti is not clear how thei three gas stations being demolished, which was disclosed and considered in other sections oft the DEIR (AR: 359, 373), would: support that there was aj prejudicial nondisclosure constituting a procedural violation of CEQA, rather than what appears to be a minor misstatement in the City's response to a comment on the DEIR. (AR 887.) Further, Petitioner has not cited any evidence in the record that shows the City's determination that there would be no permanent loss of businesses downtown in the DPP is not supported, and that temporary demolition or displacement of businesses while new projects are built does not support the City's overall analysis, presentation, and conclusions oft the VMT issues. (AR 887.) Argument does not qualify as substantial evidence. (14 Cal. Code Regs. S 15384 subd. (a); Pub. Res. Code $21082.2  regarding VMT and Impact AQ-1 and TRA-2.  subd. (c).)  IX. Conclusion and Remedies  The Court concludes there are procedural violations of CEQA ini the particulars set forth above. The appropriate remedy for the violations is an issue that requires additional comment: and briefing by the parties based on this ruling. At the hearing, the parties should be prepared to address a supplemental briefing schedule on the remedy for the violations found by the Court int this  tentative ruling.  Counsel Jason Flanders appears in person Counsel' Winter King appears in person Counsel Osa Wolf appears in person Court Reporter Tamara Willbat CSR#4609 reporting  The Court, having considered the pleadings and oral arguments of counsel, adopts    Superior Court of California, Contra Costa County  Department: 12 925-608-1000 www.cc-courts.or  K.E Bieker Court Executive Officer  thei tentative ruling as the order of the Court.  Counsel are to meet and confer re a remedy tot thei issues and how to fix the problem. Ifbriefing is needed, counsel aret to draft ar relatively simple briefing schedule.  DATED: 2/22/2024  BY:  A. MONTGOMERY, DEPUTY CLERK