WOODWARD PARK HOMEOWNERS ASSOCIATION, INC., v. CITY OF FRESNO

Filed 4/13/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Law Offices of Richard L. Harriman and Richard L. Harriman for Plaintiffs and Appellants.

James C. Sanchez, City Attorney, David P. Hale, Chief Assistant City Attorney, Kathryn Phelan, Deputy City Attorney; Burke, Williams & Sorensen, Geralyn L. Skapik, Amy E. Morgan, and Stefanie G. Field for Defendants and Respondents.

Motschiedler, Michaelides & Wishon, James A. McKelvey and C. William Brewer for Real Party in Interest and Respondent.

-ooOoo-

This case concerns the City of Fresnos approval of a new commercial development on vacant land near Woodward Park in Fresno. Invoking the California Environmental Quality Act (CEQA), two local organizations asked the superior court to set aside the citys approval. The court declined. We will reverse the superior courts decision. As we will explain, the citys actions violated CEQA and it must do the environmental review process over if it wants to approve the project.

One of CEQAs two major purposes is to require public agencies to adopt feasible mitigation measures to lessen the environmental impacts of the projects they approve. The city failed to do this here when it demanded no measures to ease the projects impact on an already-congested freeway interchange at State Route 41 and Friant Road, one block away. Although the city calculated a freeway fee of the kind frequently imposed on developments in other cities, it did not impose the fee or any other mitigation measure. This was done based on a long-standing Fresno policy of approving projects despite unmitigated freeway impacts, a policy apparently arising from the citys dissatisfaction with information provided to it by Caltrans. The policy is illegal because CEQA does not allow agencies to approve projects after refusing to require feasible mitigation measures for significant impacts. If the project went ahead without any freeway traffic mitigation, the driving public would be left holding the financial bag.

CEQAs other major purpose is to inform the public and decision makers of the consequences of environmental decisions before those decisions are made. In this case, the citys review process failed to inform the public because the two environmental documents the city producedan environmental impact report and a statement of overriding considerationswere deeply flawed. An environmental impact report, as its name suggests, is meant to report the environmental impacts a project will have. In this case, the environmental impact report usually measured the projects impacts by comparing it to a massive hypothetical office park, instead of comparing it to the vacant land that actually exists at the project site. This hypothetical office park was a legally incorrect baseline which resulted in a misleading report of the projects impacts.

A statement of overriding considerations gives a public agencys reasons for approving a projectits overriding considerationseven though the project will have significant environmental impacts that cannot be substantially lessened by mitigation measures. In this case, the statement of overriding considerations engaged in a serious misrepresentation. It claimed that the proposed project would have economic benefits superior to those of the three alternatives considered in the environmental impact report because those alternatives generally propose no development or development to a lesser degree. In reality, the three alternatives in the report were as large as or larger than the proposed project, and the record contained no reason to think their economic benefits would be smaller. The real difference was that the proposed project included a shopping centerwhich was a primary target of many members of the public opposed to the projectwhile the alternatives had no shopping center or a smaller shopping center, but more office space. The statement of overriding considerations camouflaged this difference by substituting the unsupported claim about economic superiority.

The citys environmental review process failed to satisfy either of CEQAs two main purposes. We will not speculate about why this happened, but a dissenting member of the city council observed at the meeting in which the project was approved that were talking about issues that a couple of years ago we wouldnt have even discussed like EIRs and a developer putting [freeway traffic impact mitigation fee] money into Caltrans. If, as this comment suggests, the citys culture of CEQA compliance is only now emerging, it would be a disservice to the public if a project of this magnitude were to go forward based upon a foundation that is so flawed.

FACTUAL AND PROCEDURAL HISTORIES

Real party in interest DeWayne Zinkin, doing business as Zinkin Development Company, LLC (Zinkin), obtained the approval of respondent City of Fresno (the city) to build a development on a 38.93-acre parcel located immediately to the east of the intersection of North Friant Road and North Fresno Street, one long block from the interchange between Friant Road and State Route 41. The approved project consisted of 274,000 square feet of office space and a 203,000-square-foot retail shopping center. Zinkins proposal also tentatively included 20 apartments, but the approval was not conditioned on the inclusion of any apartments in the final plan. The actual number of apartments was to be determined later, when the developer would submit a site plan and apply for a conditional use permit. As the city explains in its brief, [t]he 20 units mentioned in the application [are] just a place holder, included as part of the conceptual plan.

The citys approval of the project was comprised of several distinct acts. First, the city certified an EIR and a statement of overriding considerations pursuant to CEQA (Pub. Resources Code,  21000 et seq.).^[1] Then a portion of the property previously zoned for office and residential uses was rezoned to permit construction of a shopping center. Finally, the city amended the Fresno General Plan and the Woodward Park Community Plan to permit construction of a shopping center on a portion of the property. The plans previously designated this portion for office development. The approval was subject to a number of conditions in addition to the mitigation measures set forth in the EIR, including approval of a master conditional use permit and a site plan; exclusion of a supermarket (but allowance of a large specialty grocery store); and construction of improvements to the streets bordering the property.

Like all EIRs, the EIR in this case evaluated the environmental impacts of the proposed project by comparing the projects environmental effects with the preexisting environmental baseline at the site without the project. According to the Guidelines for the Implementation of the California Environmental Quality Act (Cal. Code Regs., tit. 14,  15000 et seq., hereafter Guidelines), the environmental baseline on the basis of which the environmental impacts of the project are to be measured normally is the physical condition of the project site at the time the notice of preparation of the EIR is published. (Guidelines,  15125, subd. (a).) In this case, the project site was (and still is) a vacant lot.

The EIR does not contain an explicit statement of the baseline it used. In setting forth the projects impacts on air pollution and traffic congestion (the main points at issue in the subsequent litigation), however, the EIR compared the projects impacts with those of a large-scale (more than 600,000 square feet) office and office-related retail development that could be built consistently with the existing zoning and plan designations. The traffic congestion studyalso examined area traffic without any development on the site (i.e., the traffic presently existing), but the air pollution study compared the proposed projects emissions only with the emissions that would be associated with an office development allowed under existing zoning, not a vacant lot.

In its air pollution discussion, the EIR noted that Fresno County is a nonattainment area (i.e., an area in which regulatory thresholds are exceeded) for ozone and 10-micron particulate matter (referred to as PM₁₀), and that any net increase in these pollutants is considered significant. The EIR compared, on the one hand, emissions of PM₁₀ and ozone precursors (referred to as ROG and NO_x) associated with operating the office project allowable under existing zoning, with, on the other hand, emissions of the same pollutants that would be associated with operating the proposed project. It found that the proposed project generates slightly more emissions than the chosen baseline. The EIR then stated (1) that because the project is in a nonattainment area, certain mitigation measures should be incorporated into the project; (2) that a significant, unavoidable impact to NO_x emissions would remain in spite of these measures; and (3) that emissions associated with operating the project would otherwise be insignificant with mitigation. The EIR also called for mitigation measures to limit the emissions of PM₁₀ associated with dust caused by the actual construction of the project, measures it said would render the construction impact insignificant.

The EIRs traffic discussion included comments on both surface streets and the nearby freeway, State Route 41, and its on- and off-ramps on Friant Road. The discussion of surface streets includes tables comparing, on a scale of A to F (F being the worst), existing traffic and existing traffic plus project-generated traffic at several intersections and road segments surrounding and adjoining the project site. It concluded that the project would cause one street segment and two intersections to fall from acceptable levels of service, defined as D or better, to E or F.

The discussion of surface streets also compared traffic at the surrounding street segments and intersections with and without the project in 2025. It concluded that, with or without the project, three street segments will operate at level C or D in 2025, while the remaining eight segments will operate at level F. Also, with or without the project, all nine intersections studied will operate at unacceptable levels in 2025.

As mitigation measures for surface streets, the EIR called for the construction of a new lane on the projects side of Friant Road, widening of the approaches to several intersections, synchronizing of existing traffic signals, and installation of two new traffic signals. Significant, unavoidable impacts to surface street traffic would remain after mitigation. This is because achieving nonfailing levels of service would require the addition of lanes to several of the surrounding streets, for which [r]ight-of-way costs would be too significant .

The EIRs discussion of freeway traffic was brief but generated substantial controversy. The final circulated draft of the EIR included an impact mitigation fee figure in a table titled SR 41 Project-Related Trip Impact and Fair Share Estimate. This table shows projected peak-hour trips generated by the project at several points in the interchange between State Route 41 and Friant Road. It stated that the trip-generation figures were estimated using the Fresno Council of Governments Regional Traffic Model. For each point in the interchange, the table showed a cost per trip. These figures were supplied by Caltrans. The table then multiplied the cost per trip by the number of trips for each point in the interchange and totaled the results. It showed a total fair share estimate of $31,155.

Having calculated the $31,155 figure, the EIR then declined to require the developer to pay it, stating: It is noted that Caltrans did not provide a source document or nexus study for the cost per trip by improvement or segment along SR 41 identified in [the table]. In the absence of such documentation by Caltrans, such fees have not been required as mitigation or conditions of approval by the City of Fresno.

The EIR went on to state that, because the proposed project would generate fewer total peak-hour trips than a project allowable under existing zoning, the assessment of fees to address project-related impacts along SR 41 may not be appropriate, even apart from the issue of Caltrans failure to deliver the desired information. The city does not object, however, to the developer paying the fee voluntarily.

After the EIR was circulated in draft form, Caltrans submitted a comment letter responding to these remarks. It stated that the city had all the information it needed and that, in any event, as the lead agency, the city had a legal duty to require mitigation of all the significant impacts it identified. It also argued that, because no freeway traffic impact mitigation was required when the existing zoning was put in place in 1990, a comparison between impacts from a project that could be built under that zoning and the proposed project was irrelevant.

Caltrans also disputed the amount of the fee. It stated that, among other, smaller deficiencies, the EIR failed to reflect 157 project-generated evening peak-hour trips traveling on a proposed southbound auxiliary lane between the Friant and Herndon exits. With these, the fee amount would be $445,817. The letter further stated that in 1998, Zinkin agreed to pay a voluntary impact mitigation fee of $37,500 for another project, but never paid it.

In its responses to public comments in the final EIR, the city made some adjustments, increasing its fee calculation to $43,897. It disputed the bulk of the difference between its and Caltrans figures, saying that, although the project would generate 157 trips in the southbound auxiliary lane between Friant and Herndon, project traffic would use only part of that lane. Caltrans did not supply a figure or methodology for determining this partial use, so the city set the fee for it at zero. The city still was not requiring the developer to pay any amount and recited a variety of reasons for its policy of allowing impacts of this kind to stand unmitigated. Regarding the voluntary $37,500 fee in the 1998 case, the city stated that Zinkin never paid this amount because Caltrans verbally rejected it.

Caltrans replied, accepting the assertion that project traffic would not use all of the auxiliary lane. It reduced its fee calculation to $306,558. It also responded to the citys request that it explain its methodology by supplying the worksheets it used in making its calculations. Arguing against the citys stated policy of refusing to demand that developers pay freeway traffic mitigation fees, Caltrans observed that it is common practice throughout the State of California for a Lead Agency to require mitigation for State Highways as a condition of project approval . It denied that it ever rejected the $37,500 for the earlier project and stated that it has requested this payment multiple times without response by the city or applicant.

The city never required Zinkin to pay any amount for mitigation of freeway traffic impacts. At the meeting in which the city council approved the project, Zinkins attorney proposed to have the city impose a fee of $45,000 in a spirit of compromise in light of the fact that expert opinion as reflected in the EIR ranges from $0 - $306,000. The attorney claimed that there is no legitimate basis for imposing that, but we volunteered to have that imposed. Later in the meeting, a council member moved to approve the project, mentioning the $45,000 payment in his motion. The city attorney asked the council for clarification of whether [t]he $45,000 voluntary mitigation fee would be added to the resolution certifying the final EIR. She never received clarification and the fee never made it into the resolution. The resolutions comprising the citys approval of the project contain a variety of conditions and mitigation measures, but say nothing about a freeway traffic mitigation fee of $45,000 or any other amount.

The EIR discussed another set of impacts under the heading Land Use and Planning. This discussion concerned the inconsistency of the project with the citys general plan and the Woodward Park Community Plan. The EIR explained that the plans designated the site for office development, not for offices and a shopping center, but that the proposed plan amendment would change this designation and eliminate the discrepancy. The EIR also stated that the Woodward Park Community Plan includes a policy limiting the amount of retail development in the Woodward Park neighborhood according to a formula tied to population growth. The shopping center component of the project would exceed these limits. The EIR asserted, however, that the citys general plan had an overriding provision that included the project site in a classification called the Woodward Park Activity Center, which was exempt from the Community Plans retail development limitations. The EIR characterized the projects inconsistency with the Community Plan as a potentially significant impact, but concluded that no mitigation was required because of inclusion of the project site in the Activity Center. Additional impacts on land use and planning, including exceeding an existing single-story limitation on part of the property and impairing trail access, were found to be insignificant with mitigation measures.

The projects other impacts were discussed under the headings of Geology and Soils, Biotic Resources, Noise, Drainage, Public Facilities and Services, Aesthetics, and Cultural Resources. None of these are at issue in this appeal. About each of them, the EIR either found the projects impacts insignificant or required mitigation measures that would render them insignificant. There were two exceptions. First, the site would look different after development and, even with mitigation measures, this would be a significant, unavoidable aesthetic impact. Second, the project would create light and glare. The EIR described this as a potentially significant impact but required no mitigation.

Like all EIRs, the EIR in this case discussed possible alternatives to the project. CEQA requires discussion of project alternatives in order to provide decision makers and the public with a reasonable picture of the range of feasible choices with lesser environmental impacts. (Guidelines,  15126.6, subds. (a)-(d).) Every EIR must include a no project alternative in order to allow decisionmakers to compare the impacts of approving the proposed project with the impacts of not approving the proposed project. (Guidelines,  15126.6, subd. (e)(1).) The no-project alternative must discuss existing conditions without the project but must also examine what would be reasonably expected to occur in the foreseeable future if the project were not approved . (Guidelines,  15126.6, subd. (e)(2).)

In this case, the EIR discussed three alternatives to the proposed project. Under the heading No Project Alternative,the last draft EIR stated that[t]he site would remain vacant but could be developed with offices as allowed by current planning and zoning designations.This suggested that the no-project alternative might have been either a vacant lot or the maximum office construction allowable under existing zoning. Apparently in response to public comments, the final EIR removed this ambiguity, saying [t]he No Project alternative is considered office development according to existing zoning. It was already clear, however, from the final draft EIRs analysis that no comparison of the project with a vacant lot was ever intended. It says the no-project alternative has the potential to slightly reduce impacts to resources including traffic, air quality, and noise relative to the proposed project. The no-project alternative might generate about 1/2 the daily trips and thus would reduce impacts from traffic, while air pollution impacts would be reduced slightly; [i]mpacts to geology and soils would be similar in that 100% site development would occur, and other impacts would also be similar. In all this, it is obvious that the no-project discussion compares the proposed projects impacts only with those of maximum office construction under existing zoning, not with the existing physical situation.

Although the EIRs section on alternatives did not say how large the maximum project allowable under existing zoning would be, other parts of the EIR did. Under existing zoning, an office park of 694,000 square feet could be built, consisting of 548,000 square feet of office space and 146,000 square feet of office-related retail space. The proposed project is 477,000 square feet, consisting of 274,000 square feet of office space, 203,000 square feet of community commercial (i.e., shopping center) space, plus 20 (or more or fewer) apartments, as we have said.

The second alternative was called Planned Office Development. This was an office development of 652,000 square feet, consisting of 489,000 square feet of office space and 163,000 square feet of office-related retail space, plus 135 apartments. Overall trip generation would be less than with the proposed project by about 3,000 trips per day, but peak-hour traffic would be greater. Air pollution impacts would be less because of the smaller traffic impacts. Demands on public services would be greater because of the larger number of apartments. Other impacts would be about the same.

The third alterative was called Reduced Intensity Alternative. The EIRs original description of this alternative obscured its actual scope. It stated that [f]or the southern half of the property, it is estimated that commercial [i.e., shopping center] uses would occupy 88,000 square feet, and office uses 140,000 square feet. The description said [t]he balance of the project site would be developed with increased office uses, but did not say what quantity of development that would involve. In the final EIRs responses to comment letters, it was made clear that the Reduced Intensity Alternative has a total of 414,000 square feet of office space. The total square footage of this alternative is thus 502,000.

The EIR concluded that the Reduced Intensity Alternative would generate 2,100 fewer trips than the proposed project. It also stated, however, that peak-hour traffic could be greater. Air pollution impacts would be less because of the smaller traffic impacts. Other impacts would be similar to those of the proposed project.

After describing the three alternatives and comparing them with the proposed project, the EIR compared the alternatives with one another. Although the three alternatives were similar to each other in that they all would cause somewhat less air pollution, somewhat less traffic congestion except at peak hours, and minimal differences with respect to other impacts when compared with the proposed project, the EIR found that the Planned Office Development was the environmentally superior alternative for the project site. That alternative was, however, not feasible from the applicants standpoint because it lacked a shopping center. Office-related retail space was included, but under the limitations of that type of retail, it would be virtually impossible to develop the planned office development alternative with the maximum allocation of 25% of the site in commercial uses. The Reduced Intensity Alternative did include a shopping center, but this alternative was also not feasible from the developers standpoint because it would not include a supermarket. Without the supermarket, leasing becomes difficult, and revenues to the developer are generally not sufficient to support enhanced architecture and other quality commercial features. Further, shopping centers in Fresno without supermarkets are usually smaller strip centers that struggle with vacancies and have aesthetic, landscaping, and signage issues. The proposed project did originally include a supermarket, but the city refused to approve that componentand prohibited a supermarket in the resolutions approving the project. City staff concluded that the supermarket would generate too much peak-hour traffic. This did not cause the developer to abandon the project as infeasible.

The proposed project and the three alternatives set forth in the EIR are summarized in the following table:

Due to the fact that the city decided to approve the project even though the EIR found significant, unavoidable air and traffic impacts that would not be mitigated to an insignificant level, a statement of overriding considerations was required. ( 21081, subd. (b).) This is a statement in writing, supported by substantial evidence in the record, of specific economic, legal, social, technological, or other benefits of the proposed project that outweigh the unavoidable adverse environmental effects . (Guidelines,  15093, subd. (a).) Notes in the Guidelines describe this as a balancing statement setting forth the agencys views on the ultimate balancing of the merits of approving the project despite the environmental damage. (Guidelines, discussion following  15093.)

The statement of overriding considerations found that the project was justified despite the significant, unavoidable impacts because [t]he other alternatives would offer a lesser variety of employment opportunities, less available services for the community and less available housing. It uses other formulations to make the same points: The benefits of providing a mixed use development with a diverse variety of office uses together with commercial goods and services and residential uses within a given neighborhood would be reduced with any of the proposed alternatives; [t]he proposed mixed use project is superior to the alternatives which would propose less intense projects with a lesser range of employment opportunities within close proximity to the surrounding residential community. These asserted advantages of the proposed project may be summarized as follows: (i) it will generate more economic activity, including creation of a variety of jobs, than the alternatives, and (ii) it will serve the goal of providing mixed uses better than the alternatives.The statement of overriding considerations found that the benefits identified are each one, in and of themselves, sufficient to make a determination that the adverse environmental effects are acceptable.

The claimed benefits of the proposed project are based in large measure on the assertions that the alternatives considered in the EIR generally propose no development or development to a lesser degree and that under the no-project alternative, the project site would remain vacant. In other words, at least with respect to the amount (as opposed to the variety or mixture) of economic activity the project would promote, the statements finding is that the proposed project has greater benefits than the alternatives because it is larger or more intensive.

The assertion that the proposed project was larger or more intensive than the alternatives was not consistent with the EIRs description of those alternatives. As we have just seen, the alternatives considered in the EIR did not generally propose no development or development to a lesser degree and the no-project alternative described in the EIR was not one in which the project site would remain vacant. The no-project alternative was more than 200,000 square feet larger than the office and commercial part of the proposed project. Unless the 20 apartments would comprise a whopping 10,000 square feet eachfour to five times the size of a typical detached housethe no-project alternative was actually a more intensive development than the proposed project. The record contains no information about the proposed size of the apartments, which are, as the city says, only a place-holder; the actual number could be zero.

The Planned Office Development was also a larger development. It contemplated 175,000 more square feet of commercial and office development and 115 more apartments than the proposed project. The so-called Reduced Intensity Alternativewas about as large as the proposed project. It included no apartments, but its office and shopping center combined were larger than the commercial portions of the proposed project by 25,000 square feet (502,000 versus 477,000).

The real difference between the proposed project and the alternatives described in the EIR was that the alternatives had office-related retail instead of a shopping center or had a smaller shopping center. The statement of overriding considerations contained no discussion of why a large office development with office-related retail space should deliver a smaller quantity of economic benefits than a smaller office development with a shopping center.

Members of the public commented extensively on the EIR before it was certified. Numerous comment letters and extensive public comments at the city council meeting and the planning commission meeting are included in the administrative record. The comments were detailed and covered a wide variety of topics, including air pollution; traffic congestion (together with freeway traffic impact mitigation fees); the appropriate mix of land uses; whether a vacant lot or the maximum project buildable under existing zoning was the appropriate basis of comparison for determining the projects environmental impacts; and whether the EIRs consideration of project alternatives was sufficient. It does not appear that the statement of overriding considerations was made available to the public before the city council meeting at which approval was granted (the documents header reads City Council Hearing December 7, 2004, the date of the meeting, and no version of it was attached to earlier drafts of the EIR in the record), but Woodward Parks counsel mentioned it orally at the meeting and it was a subject of critical discussion by one of the councils members during the meeting. A city staff report presented to the planning commission and city council also raised a wide variety of issues.

After the city approved the project, appellants Woodward Park Homeowners Association, Inc. and Valley Advocates (collectively, Woodward Park) filed a petition for a writ of mandate in superior court, asking the court to reverse the citys action. The petition named the city and city council as defendants and Zinkin as a real party in interest. It also named Caltrans and the San Joaquin Valley Air Pollution Control District as real parties in interest, stating that they were responsible agencies.

The petition alleged five causes of action. The first was Failure to Require Feasible Mitigation for Significant Cumulative Traffic Impacts in violation of CEQA. This cause of action referred to the citys refusal to impose the impact mitigation fee proposed by Caltrans for the projects burden on the interchange between State Route 41 and Friant Road. It alleged that the city has persistently and obdurately  refused to comply with the mandate of CEQA that significant adverse effects of projects shall be mitigated where feasible.

The second cause of action alleged Inadequate Analysis of Cumulative Impacts to Air Quality in violation of CEQA. It stated that the city failed to require a quantitative analysis of what beneficial impacts the mitigation measures requested by Caltrans would have caused in the vicinity, and failed to provide a quantitative study or analysis of the potentially significant adverse impacts to public health in the area.

The third cause of action alleged another CEQA violation and was headed Inadequate Analysis of Project Alternatives; Failure to Require the Environmentally Superior Alternative. It asserted that the city failed to make a good faith effort in its consideration of alternatives and should have considered and approved a true mixed use land plan with substantially more residential dwelling units .

The fourth cause of action alleged that, by approving the project and amending the citys general plan, the city rendered the general plan internally inconsistent and inconsistent with the Woodward Park Community Plan and thereby violated Government Code section 65300.5. It asserted that the plans contemplated 20 to 50 percent housing in new development projects in the area and that the proposed project did not include nearly that amount.

The fifth cause of action, Improper Procedure Used to Adopt Statement of Overriding Considerations, alleged an additional CEQA violation. It asserted that the statement of overriding considerations was not supported by substantial credible evidence in the record; failed to utilize the proper weighing and balancing procedure in that there is no quantification of economic costs associated with air and traffic impacts; and proceeded without requiring the mitigation measures demanded by Caltrans, without requiring  Zinkin to provide adequate mitigation for the cumulative traffic impacts caused by the other projects developed by him in the Friant Road expressway corridor, and without supporting the alleged cost-benefit analysis with quantified and credible substantial evidence.

Before the trial court ruled on the petition, Woodward Park voluntarily dismissed Caltrans as a party. It also waive[d] its claim in this action, based upon inadequate mitigation for the future ramp improvements at State Highway 41 and Friant Road, as alleged in the First Cause of Action .

In its ruling, the trial court first stated that Woodward Park had withdrawn its first cause of action. Although the fifth cause of action also referred to traffic impacts, the court interpreted the withdrawal of the first as waiv[ing] any claims based on inadequate mitigation of traffic impacts relating to the approved project.

On the second cause of action (relating to air impacts), the court concluded that the EIRs analysis was adequate. It found that the EIR examined the regions air pollution conditions and the pertinent regulatory standards; discusse[d] and analyze[d] the pollutants likely to be created by the project; considered the projects cumulative impact on regional air quality; acknowledge[d] the known connection between many of the pollutants likely to be created by the project, and serious health consequences, including the connection between: ozone emissions and impaired respiratory function, PM₁₀ particulates and lung damage, carbon monoxide and cardiovascular disease, and nitrogen dioxide and its adverse effects on human respiratory and immune systems. The court noted that [t]he EIR conclude[d] that pollutants created by the project will not exceed regional state and federal emissions standards, but acknowledge[d] that the cumulative impact on regional air quality is significant and largely unavoidable. This was adequate, the court ruled: Whatever else might have been said about the health effects of reduced air quality, the EIR provides adequate notice to the lead agency, other public agencies and the general public of the health consequences which may result from adding more pollutants to a nonattainment basin.

On the third cause of action (inadequate consideration of project alternatives), the court found that the EIR evaluated reasonable alternatives and the city had no obligation to consider an alternative with more housing because there was no evidence that more housing would reduce any environmental impacts. Woodward Parks conclusion that an alternative project with a greater number of residential units than that approved could substantially lessen any such environmental effects is wholly without support in the administrative record.

Ruling against Woodward Park on its fourth cause of action (general plan inconsistency), the court observed that the reference in the general plan to 20 to 50 percent housing in mixed-use developments is an advisory guideline, not a binding requirement. The 20-to-50-percent figure is set forth in a model ordinance included in a document called Landscape of ChoicePrinciples & Strategies, which in turn was adopted as an exhibit to the general plan. Policy C-8-b of the general plan encourages the use of that Model Ordinance in the development of mixed use projects, but makes clear that the Ordinance itself is only a guide for such development.

Finally, the court ruled against Woodward Park on its fifth cause of action (inadequate analysis in statement of overriding considerations) on the ground that statements of overriding considerations are not required to be quantitative in nature. Often, it stated, adequate overriding considerations are generalized reasons for approving a project, such as creating more jobs, generating taxes and the like. CEQA requires that an agency weigh and balance the economic and other benefits of the project against its environmental risks, but demands no cost-benefit analysis and does not compel an agency to quantify the adverse environmental effects of a project, in terms of cost . According to the court, the statement [set] forth the Citys findings as to the significant and unavoidable effects of the project, including the cumulative effects on air quality in the Valley, and the Citys determination that the project was acceptable, in spite of those unavoidable effects, because of the economic and other benefits of the project. This determination was supported by substantial evidence, the court ruled, so the statement was adequate. Having rejected all of Woodward Parks claims, the court denied the petition.

In its opening brief on appeal, Woodward Park again narrowed the issues, limiting its contentions to its second (air impacts), fourth (general plan inconsistency), and fifth (analysis in statement of overriding considerations) causes of action. In its discussion of air impacts, the brief argues that the EIR failed to analyze adequately the cumulative impacts to air quality, and more specifically that it did not correlate the acknowledged adverse impacts to air quality to resultant adverse health effects . Regarding plan consistency, Woodward Park contends that the 20-to-50-percent housing reference in documents annexed to the general plan is a binding rule, not an advisory guideline. The briefs discussion of the statement of overriding considerations reiterates both the general contentions that the statement lacked sufficient weighing and balancing and was unsupported by substantial evidence and the more specific claim that the statement lacked quantification of costs arising from traffic congestion and air-pollution-induced health impacts. The city and Zinkin, in separate briefs, undertook to rebut these contentions. On the day Woodward Parks reply brief was due, its counsel informed the clerks office that he would be filing the brief as soon as he could. The reply brief was never filed.

Subsequently, we issued a briefing letter, asking the parties to submit supplemental briefs addressing five issues: (A) By measuring the projects impacts against the impacts of a large office park allowable under existing zoning, rather than a vacant lot, did the EIR choose an environmental baseline that was incorrect as a matter of law? (B) By defining the no-project alternative as a large office park allowable under existing zoning, rather than a vacant lot, did the EIR define the no-project alternative incorrectly as a matter of law? (C) When the statement of overriding considerations based its finding of overriding economic benefits on a misdescription of the project alternatives considered in the EIR, did the statement fatally compromise its integrity as an informational document and were its findings unsupported by substantial evidence? (D) Was the citys refusal to require feasible mitigation measures for acknowledged freeway traffic impacts erroneous as a matter of law, and is the error cognizable under the fifth cause of action even though the first was withdrawn? (E) Did Woodward Park fail to exhaust administrative remedies with respect to the foregoing issues or fail to take action in the trial court to preserve them for appeal? Woodward Park, the city, and Zinkin submitted supplemental briefs addressing these issues.

Story continued as Part II

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^[1]Subsequent statutory references are to the Public Resources Code unless indicated otherwise.