La Mesa Citizens for a Clean Environment v. City Council
Filed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
LA MESA CITIZENS FOR A CLEAN ENVIRONMENT, Plaintiff and Appellant, v. CITY COUNCIL OF THE CITY OF LA MESA et al., Defendants and Respondents. | D046299 (Super.
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APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Reversed with directions.
La Mesa Citizens for a Clean Environment (Citizens) appeals from a judgment denying its petition for a writ of administrative mandamus challenging issuance of a negative declaration under the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.)[1] by the City of La Mesa and its City Council (collectively City). City approved a negative declaration for its adoption of a zoning ordinance amendment and certain design guidelines for properties within a specified area, " ZOA 03-02, Mixed-Use Overlay Zone and Design Guidelines for Mixed Use," also known as the " Mixed-Use Strategic Implementation Plan" (hereafter the project). The project would, among other things, increase the allowable residential density and remove limits for retail area in residential zoned parcels, and permit residential uses on the ground floor of properties in commercial zoned parcels. In denying Citizens' petition, the superior court ruled Citizens did not have standing to raise most of the issues presented in its writ petition because it failed to raise them during the public comment period and, as to those issues that Citizens had standing to raise, there was no substantial evidence supporting a fair argument that the project would have an adverse effect on traffic and air quality, or that it would have a cumulative impact.
On appeal, Citizens contends (1) it had standing to seek judicial relief by way of its writ petition; (2) it met the requirements of exhaustion of administrative remedies; and (3) City should have prepared an environmental impact report (
FACTUAL AND PROCEDURAL BACKGROUND
In June 2002, City invited select persons and entities to provide input on a proposed " Mixed-Use Strategic Implementation Plan" applying to properties within the City of La Mesa along University Avenue, El Cajon Boulevard, La Mesa Boulevard and the vicinity of City's Spring Street Trolley Station that were currently designated as " Mixed-Use Urban" in City's general plan and zoned as either commercial or residential on City's zoning map. City envisioned the project would revitalize older commercial corridors by creating more attractive walkable environments along the streets with wider sidewalks and landscaping; providing new retail and other living and work spaces that were less automobile dependent; limiting uses that were incompatible with residential spaces; and providing high-quality, pedestrian-friendly, townhouses, condominiums and apartments. Under the proposed development standards, the residential component of a mixed-use project would not exceed 40 units per acre for development sites greater than 10,000 square feet, and would not exceed 30 units per acre for sites less than 10,000 square feet. City hired consultants who prepared prototypes of three existing parcels in the project area in order to test the new proposed regulations and design changes, using conceptual projects reflecting residential density unit-per-acre rates of 33.8 (El Cajon Boulevard), 38.8 (University Avenue), 24.5 (La Mesa Boulevard, alternative No. 1) and 41.7 (La Mesa Boulevard, alternative No. 2).
City held a community meeting on the matter in November 2002, and other meetings/workshops in January 2003, and March 2003, at which residents, property owners, business owners and members of the development community were shown presentations of the prototype projects and invited to provide comments. Another community forum was held in July 2003, in which City presented all phases of the project. Several members of the community submitted comments on traffic conditions in the area: one person observed that " traffic backs up" southbound on
City's Community Development Department prepared an initial environmental study to examine the potential significant effects of the project on the environment. The initial study explained that the project did not propose specific construction projects and did not require City, developers or others to construct mixed-use projects, but only determined how City would accommodate those projects as proposed. Exact site locations, therefore, could not be analyzed. According to the initial study, as part of the proposed " Mixed-Use Overlay Zone," current limits on retail area on the ground floor in residential zones would be removed and residential uses would be permitted on the ground floor of properties in the commercial zone as long as they complied with the overlay zone's proposed development standards. Within the overlay zone, the maximum allowable residential density in residential zones would increase from 18 dwelling units per acre to 40 dwelling units per acre. The overlay zone would employ development standards and guidelines to " facilitate the development of pedestrian areas and streetscape along the street edge creating a more walkable and attractive pedestrian environment, which would bolster the goals of the mixed-use designation in [City's] General Plan." The initial study stated that the project would have no impact or less than significant impacts in the areas of land use and planning, population and housing, geology and soils, water quality and hydrology, air quality, transportation and traffic, biological resources, energy and mineral resources, hazards and hazardous materials, noise, public services, utilities and service systems, aesthetics, and cultural resources. The initial study's explanation as to mandatory findings of significance stated the project would have no direct environmental impacts because it would result in no changes in the physical environment beyond what was considered in the City of La Mesa general plan. It further concluded the project's implementation would not result in new impacts because it would take place within the goals and policies of City's general plan.
On July 18, 2003, City published a " Notice of Intent to Adopt a Negative Declaration" stating it would begin a 30-day public comment period to begin that same day and end August 18, 2003, concerning the initial environmental study and draft negative declaration. On
On
Several members of the public appeared and provided comments on the project and the adequacy of the negative declaration. La Mesa resident Marilyn Gunner expressed concerns relating to transportation, traffic, and air quality. She pointed out that the negative declaration's conclusions as to traffic were based on a 2003 facilities adequacy report that assumed a 30-dwelling-unit-per-acre density instead of the 40 units per acre proposed by the project. She also stated that the particulate matter measurement used in that report was outdated; that the EPA presently used a particulate matter
standard of 2.5 microns, when the report used a standard of 10 microns. According to Gunner, if the City were to assess daily trips on the affected properties using the increased 40-dwelling-unit-per-acre density, it would cause well over a 50 percent increase in traffic trips, exceeding the capacity of the traffic systems in place and causing a significant adverse impact on air quality. Pointing out that
Citizens filed a verified petition for writ of mandate (Code Civ. Proc., § 1085) in the superior court against City seeking to set aside the negative declaration. Citizens asserted City did not follow the law and abused its discretion in approving the rezoning and certifying the negative declaration; that there was substantial evidence in the record from which it could be fairly argued the project would result in numerous significant environmental impacts.[2] Citizens further alleged City failed to consider the cumulative impacts of the project.
City opposed the petition. Asserting that its proposed mixed-use overlay zone was not a mandate and did not place specific construction projects under consideration, City argued that Citizens had not raised numerous issues during the public comment period and thus it had standing only to raise issues concerning traffic and street capacity, air quality and cumulative impacts. As to those issues, City argued the project would result in less than significant or no environmental impact.
The court denied Citizens's writ petition. It agreed Citizens had standing only to raise issues concerning traffic, resulting air pollution and cumulative effects on air quality because it did not present evidence that the other issues were raised during the public comment period. It further ruled there was no substantial evidence in the administrative record supporting a fair argument that the project would have an adverse effect on those matters, or a cumulative impact. Following entry of final judgment on its writ petition, Citizens filed the present appeal.
I. CEQA Standards
" ' " The foremost principle under CEQA is that the Legislature intended the act 'to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.' " [Citations.] [¶] The EIR has been aptly described as the " heart of CEQA." [Citations.] Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR " protects not only the environment but also informed self-government." ' " (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 355, quoting Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 563-564; see Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 184-185.) CEQA requires preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that a project may have significant environmental impact. (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602 (Quail Botanical); Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.) A " '[s]ignificant effect. . . ' means a substantial, or potentially substantial, adverse change in the environment." (§ 21068; Guidelines, § 15382.[3])
If there is no substantial evidence a project may have a significant effect on the environment, or the project's initial environmental study identifies potential significant effects but provides for mitigation revisions that make such effects insignificant, a public agency may adopt a negative declaration to such effect. (Quail Botanical, supra, 29 Cal.App.4th at pp. 1601-1602; §§ 21080, subd. (c)(2), 21064.) In determining whether it may issue a negative declaration as opposed to an EIR, however, the lead agency is bound by a strict standard in favor of resolving doubts in favor of environmental review. (League for Protection of Oakland's etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 905; City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1424.) If substantial evidence in the record supports a fair argument significant impacts or effects may occur, the agency cannot certify a negative declaration but must prepare an EIR. (League, at p. 904; Quail Botanical, at p. 1602; City of Arcadia, at p. 1421.) This standard calls on the agency to determine if the record reflects a reasonable possibility of a significant effect. (Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego(2006) 139 Cal.App.4th 249, 265
& fn. 13 (Banker's Hill) [interpreting section 21151].) And, if such evidence is found, it cannot be overcome by substantial evidence to the contrary. (Banker's Hill, at p. 263; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1400 (Gentry); Guidelines, § 15064, subd. (f)(1) [" if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect" ].)
" [S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. [¶] Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment." (§ 21080, subd. (e)(2).[4])
II. Standard of Review
The parties set out differing standards of appellate review. Citizens contends we must make the " fair argument" determination independently as a question of law, based on Quail Botanical, supra, 29 Cal.App.4th 1597, County Sanitation District v. County of Kern (2005) 127 Cal.App.4th 1544 (County Sanitation), and Stanislaus Audubon Society Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144. City argues that in reviewing an agency's decision to adopt a negative declaration, our inquiry extends only to whether there was a prejudicial abuse of discretion, and that we must resolve reasonable doubts in favor of the administrative findings and decision. It relies on Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 867-868, a case involving a challenge to an EIR, for the latter proposition. City also asserts that because the challenged acts are legislative in nature, they are entitled to deference.
City does not fully set out the applicable review standard. It is correct that the ultimate question in reviewing an agency's CEQA compliance in the course of its legislative or quasi-legislative actions is whether there was a prejudicial abuse of discretion, which is established if the agency has not proceeded in a manner required by law or its decision is not supported by substantial evidence. (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova(2007) ___ Cal.4th ___ [2007 DAR 1453] (Vineyard Area Citizens).) Nor do we have any quarrel with City's formulation of the traditional mandamus standard of review. (See id.; County Sanitation, supra, 127 Cal.App.4th at p. 1578; Western States Petroleum v. Superior Court (1995) 9 Cal.4th 559, 567 (Western States).) However, these standards superimpose the unique " fair argument" review standard that this court is bound to apply in the context of assessing an agency's adoption of a negative declaration. (E.g., Vineyard Area Citizens, at pp. ____ [2007 DAR at pp. 1455, 1459] [addressing overarching abuse of discretion review standard and standards for assessing EIR compliance with CEQA]; County Sanitation, at pp. 1578-1579 [same, involving judicial review of decision to certify a negative declaration for adoption of an ordinance]; Quail Botanical, supra, 29 Cal.App.4th at pp. 1602-1603; San Lorenzo Valley Community Advocates for Responsible Educ. v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1375; Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2005) § 6.29, pp. 324-328, § 23.34, pp. 1165-1166.) The authorities on which City relies, Western States, supra, 9 Cal.4th 559 and Del Mar Terrace Conservancy v. City Council (1992) 10 Cal.App.4th 712, disapproved on another ground in Western States, at p. 576, fn. 6, do not involve certification of a negative declaration.
In reviewing an agency's decision to certify a negative declaration, we decide whether substantial evidence supports a fair argument that the project may have a significant effect on the environment. (See §§ 21080, subds. (c) & (d), 21151; County Sanitation, supra, 127 Cal.App.4th at p. 1579.) The determination under the fair argument test involves a question of law decided independent of any ruling by the superior court; we " 'independently " review the record and determine whether there is substantial evidence in support of a fair argument [the proposed project] may have a significant environmental impact, while giving [the lead agency] the benefit of a doubt on any legitimate, disputed issues of credibility." ' " (County Sanitation, at p. 1579; Quail Botanical, supra, 29 Cal.App.4th at p. 1603.)
Because a negative declaration ends environmental review, " [t]he fair argument standard is a 'low threshold' test for requiring the preparation of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review." (Pocket Protectors v. City of Sacramento(2004) 124 Cal.App.4th 903, 928, citing Guidelines, § 15064, subd. (f)(1).) Even if an agency is presented with substantial evidence that a project will not have a significant effect, where there is opposing substantial evidence in the whole record supporting a fair argument that the project " may" have a significant nonmitigable effect on the environment, the lead agency must prepare an EIR. Contrary to City's argument, in this context, " 'deference to the agency's determination is not appropriate. . . . ' " (County Sanitation, supra, 127 Cal.App.4th at p. 1579.) A decision not to prepare an EIR can be upheld only when " 'there is no credible evidence to the contrary.' " (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 333.) These review standards are to be distinguished from those governing an agency's decision to certify an EIR, which require the court to presume the correctness of the decision, bar the court from substituting its judgment for that of the decision maker, and impose on project opponents the burden of proving the EIR legally inadequate. (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1106.)
If an agency fails to have an EIR prepared when one is required, the agency has failed to proceed in a manner required by law and thus has abused its discretion. (No Oil, Inc. v. City of Los Angeles, (1974) 13 Cal.3d 68, 74, disapproved on other grounds in Western States, supra, 9 Cal.4th at pp. 575-576; see also §§ 21168, 21168.5; Code Civ. Proc., § 1094.5.) Further, " 'when an agency fails to proceed as required by CEQA, harmless error analysis is inapplicable. The failure to comply with the law subverts the purposes of CEQA if it omits material necessary to informed decisionmaking and informed public participation. Case law is clear that, in such cases, the error is prejudicial.' " (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 723.)
III. Exhaustion of Administrative Remedies
As stated, the superior court ruled Citizens did not have standing to raise most of the assertedly significant environmental impacts presented in its writ petition due to the absence of public comment on those issues. Citizens contends the trial court confused the issues of standing and exhaustion of administrative remedies; in part it argues it met the standards for exhausting administrative remedies under CEQA because numerous people commented on and voiced concerns about many environmental issues during the public meetings. According to Citizens, those comments, combined with Ms. Gunner's testimony at the October hearing, entitles it to judicial review on all of the environmental issues identified in its writ petition. City does not contest Citizens's standing to bring its writ petition as a beneficially interested party.[5]
Whether one refers to them as standing or exhaustion requirements (see Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 590-591 (Tahoe Vista) [statutory requirement that party raise issue in administrative California Environmental Quality Act hearings is really standing requirement, not exhaustion requirement]; Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, 1105-1106 [same]), the question addressed by the court was whether Citizens and others had raised issues to the City during public proceedings in such a manner to permit Citizens to raise them under CEQA. The Legislature has used the term exhaustion of administrative remedies in addressing this question (see Historical and Statutory Notes, 56A West's Ann. Pub. Res. Code (1996 ed.) foll. § 21177, p. 539) as has this court recently (Banker's Hill, supra, 139 Cal.App.4th at p. 282), and we employ it to review the court's decision here.
A. Requirements
Section 21177 requires, as a condition to judicial review, that the alleged grounds of noncompliance with CEQA's requirements be presented to the public agency during the public comment period or prior to the close of the public hearing on the project.[6] " Although it is true the plaintiff need not have personally raised the issue [citation], the exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary." (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894; § 21177, subd. (a); accord, Tahoe Vista, supra, 81 Cal.App.4th at p. 594.) The exhaustion doctrine is not satisfied if the objections are not sufficiently specific to allow the agency to evaluate and respond to them; perfunctory or skeletal showings will not meet the requirement. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1138-1140.)
Exhaustion of administrative remedies is a jurisdictional prerequisite, not a matter of judicial discretion. (Tahoe Vista, at p. 589; Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, 876.) " '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 to judicial review.' " (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447; see also Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197.) Whether the exhaustion of administrative remedies doctrine applies in a given case is a legal issue subject to our independent review. (Evans v. City of San Jose, supra, 128 Cal.App.4th at p. 1136.)
B. Notice
Citizens contends it is not prevented from challenging City's action in its entirety under the exhaustion of administrative remedies doctrine because its members were not provided notice of the public hearings on the project until the final October 29, 2003 hearing, and the notice provided did not comply with Government Code section 65009, subdivision (b)(2).[7] City asserts notice was provided in its official legal notice newspaper and complied with CEQA and Guidelines requirements; that under Evidence Code section 664 and Gentry, supra, 36 Cal.App.4th at pp. 1384-1385,this court should presume notice requirements were met because Citizens has shown no evidence to the contrary.
Section 21177, subdivision (e) addresses the notice requirements for CEQA's exhaustion of administrative remedies doctrine. It provides: " This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law." The required notice for an agency's preparation of a negative declaration appears in section 21092, subdivision (a), which requires that " [a]ny public agency which is preparing . . . a negative declaration shall provide public notice of such fact within a reasonable period of time prior to the final adoption by the public agency . . . ." (See also Guidelines, § 15072; Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 743; Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 745, declined to follow on other grounds in Quail Botanical, supra, 29 Cal.App.4th at pp. 1602-1603.) Statutory requirements for public notice are fulfilled if the public agency makes a good faith effort to follow the procedures prescribed by law for giving notice. (Newberry Springs, at p. 746.)
La Mesa resident Marilyn Gunner, who is also Citizens' counsel on appeal, appeared and spoke at the October 29, 2003 City Council meeting at which the City Council adopted the proposed zoning ordinance, design guidelines and the negative declaration. That meeting was preceded by published notice on October 16, 2003 and October 17, 2003, that substantially complied with Government Code section 65009, subdivision (b)(2), having provided: " Court challenges to the nature of the proposed action may be limited to raising only those issues raised at the public hearing described in this notice or in written correspondence delivered to, or prior to, the public hearing." The October meeting was also preceded by a 30-day comment period of which City gave published notice. At the
B. Sufficiency of Citizen Comments
City argues that the court correctly limited Citizens' challenge to traffic volume increases and inadequate street capacity, decrease in air quality, and cumulative environmental impacts from the project. It maintains " concerns" voiced by citizens about issues is not evidence sufficient to meet CEQA's fair argument standard, and thus those comments do not satisfy the exhaustion requirement.[8]
We are compelled to agree. The public remarks to which Citizens refers (with the exceptions of Gunner's remarks concerning traffic, street capacity, air quality and cumulative impacts) are general and cursory complaints or comments about various aspects of the project. Some of the comments stemmed from the November 2002 meeting, before City gave notice of its intent to adopt a negative declaration. Those comments were made by residents on a form asking them to circle issues (e.g. " Parking," " Density Distribution," " Appropriate Commercial Uses and Configuration" ) they considered important, or asking them to " Describe any issues not discussed today." Other written comments were made during or after the July 30, 2002 community forum at which the City had indicated its intent to adopt a negative declaration, and appear on forms asking participants to write what they " like" or " don't like" about matters such as " Zoning and Design Guidelines" or " Public Improvements." In its brief, Citizens sets out some of the more typical remarks, which included, " I like underground parking. I don't like surface parking" or " I don't like too many cars parked along the curbs or street front parking. Get rid of the cars," or " lighting more in tune with the historical character of downtown . . . neon signage is too bright and modern."
These kinds of comments do not constitute objections to City's compliance with CEQA, nor do they amount to articulated statements that the project may have a substantial environmental impact necessitating preparation of an EIR. Indeed, " [u]nsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt" are not factors which must be considered when determining a project's potential effect on the environment. (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1352; Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424, 434, fn. 5 [remarks constituting a speaker's concerns and suspicions about possible environmental effects are not evidence thereof].) In Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d 1194, the court found such " generalized environmental comments" did not suffice to meet CEQA's exhaustion requirement: " It is difficult to imagine any derogatory statement about a land use project which does not implicate the environment somehow. More is obviously required. . . . [¶] 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 to judicial review. The doctrine was not satisfied here by a relatively few bland and general references to environmental matters. The city was entitled to consider any objection to proceeding by negative declaration in the first instance, if there was one. Mere objections to the project, as opposed to the procedure, are not sufficient to alert an agency to an objection based on CEQA." (Coalition for Student Action, at pp. 1197-1198.) Here, as in Coalition for Student Action, the referenced objections or criticisms were not directed at the City's procedure of using a negative declaration. Absent such comments, Citizens is precluded from raising issues on appeal as to the project's impacts relating to land use, increased light and glare, increased demand for utilities, population density, noise levels, increased use of public services, and preservation of open space.
IV. Allegations of Significant Impact on Environment
Citizens contends the record contains evidence from which it may be fairly argued the project will have significant impacts on transportation and traffic, and air quality.[9] Pointing to indications of increased air pollution and traffic congestion in the project and surrounding areas, Citizens further argues City was mandated to find significant environmental impacts requiring preparation of an EIR under Friends of " B" Street v. City of Hayward (1980) 106 Cal.App.3d 988. Citizens cites this case for the proposition that temporary increases in the levels of air pollution, as well as " 'increased . . . auto exhaust' and 'increased traffic' . . . contribute to a 'mandatory' finding of significant environmental impacts." Citizens also argues City was mandated to evaluate the cumulative impacts from the project under Guidelines section 15064, subdivision (d) but did not do so.
A. Transportation/Traffic
1. Initial Study Findings
City's initial environmental study considered the project's effects on traffic and transportation by examining the three major corridors in the project area and near the Spring Street trolley station. It found the project would result in a less than significant impact as to whether it would substantially increase vehicle trips or traffic congestion, exceed an established " level of service" standard[10] for surrounding roads, result in inadequate emergency access or access to nearby uses, or result in insufficient parking capacity on- or off-site.
The initial study based its conclusions on a June 2003 Facilities Adequacy Report prepared by Kimley-Horn and Associates (the Kimley report), which, by its own terms, " evaluate[d] the adequacy of certain public facilities on a broad-brush basis." The Kimley report included a preliminary traffic analysis finding there was sufficient capacity along the street segments of
2. Contentions
Citizens challenges the adequacy of the underlying Kimley report's analysis on several fronts. It points out the Kimley report (1) was prepared primarily to determine street adequacy and does not reference environmental effects or impacts; (2) evaluated adequacy of public facilities on a broad-brush basis without conducting technical studies or site specific evaluations; (3) based its analysis on an unsupported assumption that only 30 percent of the properties would develop; and (4) based its analysis on development at a density rate of 30 units per acre, which Citizens asserts is an unlikely scenario given City's incentive to encourage development at the highest rate possible, and the fact City's own prototypes shown to the public used development at rates of 33.8, 24.5, 38.8 and 41.7 units per acre. Citizens further asserts the Kimley report inadequately determines the environmental impacts according to nominal Level of Service estimates rather than the actual percentage increase in average daily trips within the project area. Citizens points out the Kimley report does not consider the secondary effects of traffic in nearby corridors or spillover from nearby interstates and highways, nor does it engage in an analysis of site specific factors.
In response, City merely asserts " [i]t is unrealistic to assume that all of the parcels will be redeveloped to maximum dwelling capacity as it is to assume that none of the parcels would be redeveloped at all." City points out that thirty dwelling units per acre was " determined, by experts in the field, to be a reasonable estimate of potential redevelopment" and " [t]hus, there is substantial evidence that the use of 30 dwelling units per acre is the best way to determine likely environmental impacts based on the development most likely to occur under the Plan." Finally, City argues that even assuming each parcel redevelops to maximum capacity, the administrative record shows " the traffic load would still be less than the capacity of existing streets."
3. Analysis Under The Fair Argument Standard
Under the fair argument test, it is not Citizens' burden to present studies or expert testimony definitively proving the proposed project will have an adverse effect on the environment; it is required only to demonstrate that the record contains substantial evidence to support a fair argument that the project may have a significant effect. (League for Protection of Oakland's etc. Historic Resources v. City of Oakland, supra, 52 Cal.App.4th at p. 905; Stanislaus Audubon Society Inc. v. County of Stanislaus, supra, 33 Cal.App.4th at pp. 152-153.) Citizens has met this burden.
The Kimley report's broad assumption of a 30 percent development rate at a
30-unit-per-acre density is without any factual basis or support, and it in fact contradicts City's own goals and projections of development rates reflected in the administrative record. The Kimley report summarized its " Study Approach" as follows: " The Mixed-Use Strategy [sic] Implementation Plan identified parcels along each corridor that could, potentially redevelop. For example,
Additionally, for Spring Street, as with the other streets, the Kimley report does not explain the criteria used in imposing or applying the level of service classifications. It does not provide " threshold of significance" criteria (Guidelines, § 15064.7) by which a person can objectively assess the impact of increased traffic.[12] It is impossible to determine whether a particular increase in traffic may degrade or affect the level of service classification.
We reiterate the substantial evidence definition relevant here from section 21080: " For the purposes of this section and this division, substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. [¶]
(2) Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment." (§ 21080, subd. (e)(1), italics added; see also Guidelines, § 15064, subd. (f)(5).) The unexplained assumptions and criteria identified above – forming the basis for the Kimley report's trip generation and traffic capacity analysis, and in turn, the initial study's conclusions regarding traffic impacts – are not " reasonable assumption[s] predicated on facts." (Guidelines, § 15384, subd. (b).) As a consequence, they do not constitute " documentation of the factual basis for the finding in a Negative Declaration that a project will not have a significant effect on the environment." (Guidelines,
§ 15063, subd. (c)(5), italics added; see Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1180;Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at p. 1346-1347 [initial study should seriously consider a project's potential environmental impact and " should contain supporting evidence and not mere conclusions about potential environmental effects" ].) CEQA contemplates serious and not pro forma consideration of the potential environmental consequences of a project; " '[t]he determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data.' " (Leonoff, at p. 1347, quoting Guidelines, § 15064, subd. (b).) " '[A]lthough an initial study can identify environmental effects by use of a checklist [citation], it must also disclose the data or evidence upon which the person(s) conducting the study relied. Mere conclusions simply provide no vehicle for judicial review.' " (Gentry, supra, 36 Cal.App.4th at p. 1378; City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 542 [conclusory statements by an agency unsupported by any evidence or factual information are not substantial evidence].) The information presented in the Kimley report does not constitute substantial evidence on which to form a conclusion concerning the lack of significant environmental impacts.
Further, City's rationale for assessing significance of traffic impacts – finding insignificance from the fact that projected additional trips generated on each individual street would not exceed a level of service D traffic capacity for streets of that type – is a flawed approach inconsistent with CEQA's object to afford the fullest possible protection to the environment. (Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428, 1443.) As stated, a significant effect on the environment is a " substantial, or potentially substantial, adverse change." (§ 21068; Banker's Hill, supra, 139 Cal.App.4th at p. 277.) " Under the Guidelines, a project will normally have a significant effect on the environment if it will '[c]ause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system.' " (Banker's Hill, at p. 277,
quoting Guidelines, appen. G, § XV, subd. (a).) And an agency is " responsible for considering the effects, both individual and collective, of all activities involved in a project." (§ 21002.1, subd. (d).) " When assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether the effects of the project are cumulatively considerable. An EIR must be prepared if the cumulative impact may be significant and the project's incremental effect, though individually limited, is cumulatively considerable. 'Cumulatively considerable' means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of the probable future projects." (Guidelines, § 15064, subd. (h), see § 21083, subd. (b)(2).)
While the Kimley report estimates the various average daily trips and volume/capacity ratio[13] separately for each corridor, by its own admission it does not assess them in any site or time specific manner. There is no peak travel analysis. The Kimley report characterizes Spring Street as " among the most congested within the City of La Mesa" with traffic volumes " at or approaching the street[']s capacity." Yet, isolating its analysis to that street without considering the impact of traffic from other corridors, the Kimley report concludes that, despite the available limited capacity, it is " likely" the additional 340 daily trips (projected for development on that street alone based on the unsupported assumptions noted above) will not generate any significant traffic impacts.
City's analysis is akin to those rejected by the courts in Los Angeles Unified School District v. City of Los Angeles (1997) 58 Cal.App.4th 1019 (LAUSD) and Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98 (Communities) in the context of addressing cumulative impacts. The LAUSD court explained, " The EIR in the present case reasons the noise level around the schools is already beyond the maximum level permitted under Department of Health guidelines so even though traffic noise from the new development will make things worse, the impact is insignificant. This same reasoning was rejected in [Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 718 (
Validating the approach taken by the LAUSD court, the court in Communities, supra, 103 Cal.App.4th 98, explained the guiding criterion on the subject of cumulative impact under Public Resources Code section 21083 and Guidelines section 15064. Under those provisions, " the need for an EIR turns on the impacts of both the project under review and the relevant past, present and future projects. Under [Public Resources Code] section 21083, an EIR is required if the 'possible effects of a project are individually limited but cumulatively considerable'; the incremental effects of an individual project are to be 'viewed in connection with the effects of' past, current and probable future projects. Guidelines section 15355 defines 'cumulative impacts' as referring 'to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts' (italics added); and states that the 'cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time' (italics added). And 'the relevant question' . . . is not how the effect of the project at issue compares to the preexisting cumulative effect, but whether 'any additional amount' of effect should be considered significant in the context of the existing cumulative effect. This does not mean, however, that any additional effect in a nonattainment area for that effect necessarily creates a significant cumulative impact; the 'one [additional] molecule rule' is not the law. Moreover, the basic approach set forth in Guidelines section 15064, subdivision (i)(1) seems sound – that is, in assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether the proposed project's incremental effects are cumulatively considerable." (Communities,103 Cal.App.4th at pp. 119-120.)
The Communities court undertook this analysis in upholding the invalidation of former Guidelines section 15030, subdivision (a)(4) as " inconsistent with controlling CEQA law because [it] measure[s] a proposed project's de minimis incremental impact relative to the existing cumulative impact, rather than focus on the combined effects of these impacts." (Communities, supra, 103 Cal.App.4th at p. 121.) It reasoned, " Focusing on the de minimis effect in absolute terms isolates the effect individually, and this runs counter to the combined approach that CEQA cumulative impact requires." (Ibid.)
We acknowledge that the lack of analysis in the initial study, standing alone, does not give rise to a fair argument the project will in fact have significant environmental effects. (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at pp. 1200-1201; Gentry, supra, 36 Cal.App.4th at pp. 1379, 1382.) Deficiencies in the record can, however, " 'enlarge the scope' of the fair argument that may be made 'based on the limited facts in the record.' " (Id. at p. 1382, citing Sundstrom v. City of Mendocino (1988) 202 Cal.App.3d 296, 311.) In Sundstrom, the court explained: " The agency [will] not be allowed to hide behind its own failure to gather relevant data . . . . CEQA places the burden of environmental investigation on government rather than the public. If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences." (Sundstrom,at p. 311.)
Under the circumstances, we conclude the evidence in the administrative record of increased traffic in at least one heavily congested street within the project, combined with the absence of empirical data in the record supporting the City's development assumptions and traffic capacity calculations and the absence of cumulative impact analysis, permits a reasonable inference of material environmental impact. An EIR is required if there is substantial evidence that any aspect of the project may cause a significant environmental impact. (Guidelines, § 15063, subd. (b)(1), italics added; Sundstrom, supra, 202 Cal.App.3d at p. 309.) Such is the case here.
B. Air Quality
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Notes