County of San Diego v. Vista Unified school Dist.

Filed 4/14/06 County of San Diego v. Vista Unified school Dist. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lisa Guy-Schall, Judge. Reversed.

Vista Unified School District (VUSD), seeking to alleviate overcrowding in its two high schools, approved building two new magnet high schools (the Project) on a site in the City of Oceanside at the intersection of Highway 76 (SR-76) and Melrose Avenue (the site). During the site selection process, VUSD considered numerous prospective locations, narrowed the alternatives to four that were examined and compared in detail, and ultimately selected the site as the location of the Project. The roads abutting the site are burdened by traffic congestion, and the parties agree the Project will increase the traffic load in this area during certain portions of the day. A principal dispute here is whether the Environmental Impact Report (EIR) for the Project adequately quantified that impact or evaluated adequate mitigation measures for the burden resulting from the Project.

As part of the process to approve the Project, VUSD provided a "Notice of Preparation" (NOP) for the Project's EIR, prepared a Draft EIR (DEIR), circulated the DEIR for comment, and held public hearings, as prescribed by the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).^[1] VUSD ultimately determined the Final EIR (FEIR) adequately disclosed and analyzed the potentially significant impacts of the Project and disclosed and analyzed feasible mitigation measures for those significant impacts. VUSD found implementation of certain mitigation measures would reduce most of the significant impacts to below significant levels, and found overriding considerations outweighed the unmitigatable impacts. Accordingly, VUSD certified the FEIR and approved the Project.

Several Project opponents, including the City of Oceanside (City) and County of San Diego (County), filed actions in Superior Court challenging VUSD's certification of the FEIR and approval of the Project. The trial court entered judgment in favor of VUSD. The present appeals by City and County assert VUSD's decision to certify the FEIR and approve the Project must be vacated because (1) VUSD did not comply with various procedural requirements imposed by CEQA, (2) the FEIR's analysis of and conclusions about various impacts and mitigation measures were inadequate, and (3) several of VUSD's findings were not supported by substantial evidence.

I

FACTUAL AND PROCEDURAL CONTEXT

A. The Project

VUSD's current high schools are overcrowded and the need for new high school facilities is undisputed. VUSD identified 14 potential locations for the Project, but 10 of those had readily apparent flaws and were quickly rejected. The remaining four locations, as well as the option of building no new facility, were compared and considered at length. VUSD ultimately selected the site over the other three locations as environmentally superior to the rejected locations.^[2]

The site abuts a busy highway and is adjacent to large-scale agricultural operations, and is subject to the noise, dust and pesticides that accompany those operations.^[3] Because of its location, there were significant concerns about the Project's impact on traffic, safety and agricultural resources.

B. The CEQA Process

The NOP

On January 23, 2004, VUSD provided the NOP to the State Clearinghouse for distribution to responsible agencies (CEQA Guidelines, tit. 14, Cal. Code Regs., § 15023),^[4] and stated it would receive comments on the Initial Study (listing the Project's potential impacts, which might require further analysis) from January 26 through February 24, 2004. The NOP was received by all responsible agencies by January 26, 2004.

The DEIR

On February 26, 2004, after the comment period elapsed, VUSD circulated its DEIR for review and comment.^[5] VUSD sought approval from the State Clearinghouse, pursuant to section 21091, subdivision (e), to shorten the public review period from 45 days to 30 days. Of the 10 agencies identified by VUSD, eight approved the shortened review period and two did not respond; no objection was interposed to the shortened period. Accordingly, the State Clearinghouse, after determining the shortened review request was consistent with the criteria outlined by state law and guidelines, approved VUSD's request to shorten the public review period to 30 days.

The Public Comment on and Final Approval of the FEIR

After the DEIR was released for public comment, nearly 1000 written comments were received from 64 persons or entities. On March 29, VUSD distributed its draft FEIR. The draft FEIR contained responses to all timely-submitted comments. VUSD also received late comments from several individuals and entities, and VUSD prepared written responses to each of those comments.

On April 8, 2004, and April 22, 2004, VUSD held public hearings and approved all resolutions necessary for the Project to proceed. VUSD certified that the FEIR disclosed and analyzed the potentially significant impacts of the Project and disclosed and analyzed feasible mitigation measures and Project alternatives that could reduce or avoid significant impacts. VUSD approved the Project, finding various measures incorporated into the Project would mitigate most of the Project's significant impacts and, as to those significant impacts deemed unmitigatable, overriding considerations justified approval of the Project.

C. Trial Court Proceedings

City and County filed Petitions for Writ of Mandate raising a host of CEQA-based claims and sought an order setting aside the certification of the FEIR and approval of the Project.^[6] The trial court entered judgment in favor of VUSD on these CEQA-based claims, and City and County timely filed this appeal.

II

GOVERNING STANDARDS

A. Standards for an EIR

The CEQA process seeks to protect the environment by compelling the government "first to identify the environmental effects of projects, and then to mitigate those adverse effects through the imposition of feasible mitigation measures or through the selection of feasible alternatives. It permits government agencies to approve projects that have an environmentally deleterious effect, but also requires them to justify those choices in light of specific social or economic conditions." (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1233.)

" 'CEQA is essentially an environmental full disclosure statute' " (Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 186), and the EIR "is ' "the heart of CEQA" ' and the 'environmental "alarm bell" whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.' " (Sierra Club v. State Bd. of Forestry, supra, 7 Cal.4th at p. 1229.) "The Legislature has made clear that an EIR is 'an informational document' and that '[t]he purpose of an environmental impact report is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.' [Citations.] [¶] Under CEQA, the public is notified that a draft EIR is being prepared [citations], and the draft EIR is evaluated in light of comments received. [Citations.] The lead agency then prepares a final EIR incorporating comments on the draft EIR and the agency's responses to significant environmental points raised in the review process. [Citations.] The lead agency must certify that the final EIR has been completed in compliance with CEQA and that the information in the final EIR was considered by the agency before approving the project. [Citation.] Before approving the project, the agency must also find either that the project's significant environmental effects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits. [Citations.]" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391 (Laurel Heights I), fns. omitted.)

"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.' [Citation.]" (Laurel Heights I, 47 Cal.3d at p. 390.) The EIR, in addition to being an environmental alarm bell, is "also intended 'to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.' [Citations.] Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government." (Id. at p. 392.)

CEQA only requires an EIR to reflect a good faith effort at full disclosure; "it does not mandate perfection, nor does it require an analysis to be exhaustive." (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26 (Dry Creek).) Thus, "[t]he absence of information in an EIR does not per se constitute a prejudicial abuse of discretion." (Ibid.) An EIR need be prepared only with a "sufficient degree of analysis to provide decisionmakers with information [that] enables them to make a decision [that] intelligently takes account of environmental consequences." (Guidelines, § 15151.) Error occurs if the "failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." (Dry Creek, at p. 26; see also Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1355 (Berkeley).)

B. Standards for Judicial Review

An EIR is presumed adequate (§ 21167.3), and when a court reviews an agency's action under CEQA, its "inquiry 'shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' " (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 568.) We accord no deference to the trial court's decision because our review of the agency's decision is de novo, and we apply identical standards as were applied by the trial court to evaluate the sufficiency of the evidence to support the agency's determination. (Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1393; League for Protection of Oakland's etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 905.)

CEQA Guidelines define substantial evidence as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Guidelines, § 15384, subd. (a).) Whether a fair argument can be made "is to be determined by examining the whole record before the lead agency." (Ibid.) Substantial evidence is provided by facts, reasonable assumptions predicated on facts, and expert opinions supported by facts, but is not provided by argument, speculation, unsubstantiated opinion or narrative, or erroneous or inaccurate evidence. (Id. at subd. (a), (b).)

Under the applicable standards, a reviewing court " 'does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document.' [Citation.]" (Laurel Heights I, supra, 47 Cal.3d at p. 392.) We must resolve reasonable doubts in favor of the agency's findings, and may not reweigh conflicting evidence to determine who had the better argument. (Berkeley, supra, 91 Cal.App.4th at p. 1356.) Accordingly, even if a court believes an opposite conclusion would have been more reasonable, we may not set aside an agency's certification of the EIR and approval of a project if the findings of the agency have evidentiary support. (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 572; accord, Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564.)

III

PROCEDURAL CLAIMS

City argues VUSD violated CEQA's procedural requirements because the NOP period was improperly shortened and the public review period for the DEIR was substantially shortened.^[7] City appears to assert that, because an agency can be found to have abused its discretion if the agency did not proceed in a manner required by law, these violations support an order compelling VUSD to vacate certification of the FEIR.

The NOP Claim

CEQA guidelines specify that a lead agency must provide the NOP to responsible agencies (Guidelines, § 15082, subd. (a)), responsible agencies have 30 days after receipt of the NOP to provide comments (id at subd. (b)), and the DEIR may not be circulated until after that 30-day period has expired. (Id. at subd. (a)(4).) Here, VUSD provided the NOP to the State Clearinghouse for distribution to responsible agencies and stated VUSD would receive comments on the Initial Study from January 26 through February 24, 2004. The NOP was actually received by all agencies, including City, by January 26, 2004. City's response to the NOP did not assert the NOP period was improperly truncated.

Although City claims the comment period provided in the NOP (January 26 through February 24) was only 29 days, that NOP period (inclusive of the first and last days) was 30 days, and therefore there appears to be no transgression of the NOP comment period. More importantly, however, City's failure to timely object convinces us this issue is waived. The essence of the exhaustion of administrative remedies doctrine is that a public agency must be given the opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198), and judicial review is precluded unless the issue was first presented at the administrative level. (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894.) Because City's failure to raise this objection at the outset prevented VUSD from timely correcting any perceived deficiency in the NOP comment period, this claim of error is not preserved.

The Public Review Period Claim

The period for public review of and comment on a DEIR is ordinarily 45 days. (§ 21091.) However, a lead agency may seek and obtain permission from the State Clearinghouse for a shortened review period of 30 days. (Guidelines, § 15105, subd. (a) ["The public review period for a draft EIR shall not be less than 30 days nor should it be longer than 60 days except in unusual circumstances. When a draft EIR is submitted to the State Clearinghouse for review by state agencies, the public review period shall not be less than 45 days, unless a shorter period, not less than 30 days, is approved by the State Clearinghouse."].) VUSD sought and obtained approval from the State Clearinghouse to shorten the public review period to 30 days. VUSD complied with the required public review period.^[8]

IV

TRAFFIC CLAIMS

City and County raise similar and overlapping claims asserting the FEIR's analysis of traffic impacts was flawed. They argue (1) the traffic study and report (the report) significantly understated or ignored the direct impacts of the Project on traffic congestion in the vicinity of the Project (the direct impact claim); (2) the FEIR contained no separate analysis of the Project's cumulative impacts on traffic in the Project vicinity (the cumulative impact claim); (3) the measure proposed by the FEIR to mitigate traffic impacts at the Melrose/SR-76 intersection was improper as a matter of law (the fair share claim); and (4) the infeasibility determination on potential mitigation of other impacted intersections was without substantial evidentiary support.

Because many of these claims are based on City and County's assertion that the traffic study underlying the report is too flawed to provide substantial evidentiary support for the FEIR's conclusions and VUSD's findings, we begin with an examination of the report.

A. The Report

The expert retained by VUSD to perform the traffic analysis and prepare the report measured the existing (or baseline) traffic loads as of 2004 by manually counting traffic during the morning "peak period," at the five signalized intersections along SR-76 closest to the site.^[9] The report then projected, excluding the traffic added by the Project itself, a conservative scenario that baseline traffic in 2008 (the date the school would open) would be 12 percent higher than 2004 levels of traffic.^[10] Applying the projected 2008 traffic loads on the five analyzed intersections, the report concluded that (even without the traffic added by the Project) two intersections would operate at LOS^[11] level "F," and one each would operate at LOS levels "E," "D" and "C."

The report then projected the number of car trips the Project would generate. Relying on a 1998 SANDAG study, which projects the trip generation rates for various types of projects, the report forecast the Project would generate 3600 total daily trips in the vicinity of the Project.^[12] The report used this figure to analyze the direct and cumulative traffic impacts of the Project even though the expert concluded, for a variety of reasons, the actual traffic generated by the Project would likely be less than 3600 trips per day.^[13]

The report then added the Project-generated traffic to the 2008 baseline traffic and concluded the Project would have significant impacts on the LOS at four of the five intersections. The report concluded the impacts on the SR-76/Melrose intersection (the corner at which the Project would be located) could be mitigated by certain improvements at that intersection. The report concluded it would not be feasible to mitigate the impacts on the other three intersections, but the incremental impact of the Project would be reduced to less than significant after proposed road improvements in the vicinity are completed.^[14]

B. The Direct Impacts Claim

City and County challenge the adequacy of the report for a host of reasons. They assert the report vastly understated the number of daily car trips the Project would create in the vicinity, did not measure afternoon or evening traffic levels to determine the impacts of the Project on traffic conditions at those times, did not measure or discuss traffic impacts on nearby road segments, improperly focused on only five signalized intersections around the site while ignoring impacts on other intersections, did not evaluate the impacts of traffic associated with events at the proposed gymnasium and stadium, and did not evaluate traffic using the guidelines promulgated by City, Caltrans District 11, or by County's Congestion Management Program.

We analyze these arguments mindful that CEQA "does not mandate perfection, nor does it require an analysis to be exhaustive" (Dry Creek, supra, 70 Cal.App.4th at p. 26) but requires only that the EIR reflect a good faith effort at full disclosure of the impacts of a project. As long as the EIR is prepared with a "sufficient degree of analysis to provide decisionmakers with information [that] enables them to make a decision [that] intelligently takes account of environmental consequences" (Guidelines, § 15151), we will not second-guess whether the studies relied on by the EIR "are irrefutable or whether they could have been better." (Laurel Heights I, supra, 47 Cal.3d at p. 409.)

The Estimated Volume Claim

The report estimated the Project would draw 3600 trips to the vicinity (a figure County's comment letter apparently adopted) by using the 1.8 multiplier derived from SANDAG guidelines. City, in a comment letter challenging that figure, asserted the Institute of Traffic Engineers (ITE) utilized a different multiplier (of 4-5 trips per student) for high schools with no busing or public transportation, and this latter figure should be used in lieu of SANDAG's guideline because the Project would not have busing or public transportation.^[15] VUSD acknowledged City's criticism but noted (1) the 1.8 multiplier was consistent with SANDAG's trip generation rates for a high school, (2) there was no evidence a magnet high school generates more traffic than the high schools considered by SANDAG's guide, and (3) SANDAG guidelines actually called for an offsetting 25 percent reduction for "diverted and/or pass-by trips" but the report had used the 3600 daily trips figure (without SANDAG's recommended reduction) to provide a more conservative (higher) figure for purposes of analyzing traffic impacts. Accordingly, notwithstanding City's complaints, the FEIR concluded 3600 trips was an appropriate forecast of the trips the Project would create in the area.

City argues there is no substantial evidence to support this conclusion because SANDAG's rate assumes some students will use busing or public transportation. City argues that because this assumption is inapplicable to the Project, VUSD was obliged to justify by a "reasoned and good faith analysis" why it nevertheless selected the SANDAG rate rather than the conflicting data or opinions of ITE. (Cf. Berkeley, supra, 91 Cal.App.4th at p. 1367; Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391.) However, City's predicate--that the SANDAG rate assumes some students will use busing or public transportation--was not mentioned in its comment letter. Accordingly, VUSD's explanation for its selection of the SANDAG rate over differing models (e.g. that there was no evidence a magnet school generates rates higher than the high schools considered by the SANDAG guide) satisfied its obligation to explain why it selected the 1.8 multiplier. We conclude VUSD had substantial evidence from which to conclude the Project would draw 3600 daily car trips to the vicinity. (City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 541-542 [credible expert testimony, even if contradicted, will provide substantial evidence to support findings].)

The Absence of Afternoon, Evening or Weekend Traffic Data Claim

The determination of existing (or baseline) conditions is an important aspect of an EIR because, without an adequate baseline description, the analysis of a project's impacts and proper mitigation measures may be impossible. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 120-124.) County asserts the report was inadequate because there were no data gathered on afternoon/evening "peak hour" conditions, or on traffic conditions around the lunch hour or on weekends, or on traffic conditions during the 2:30 to 3:30 p.m. period when departing traffic from the school would be heaviest. However, County apparently raises these claims for the first time on appeal and therefore any alleged inadequacies in the FEIR on these issues may have been waived. (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at p. 1198; Resource Defense Fund v. Local Agency Formation Com., supra, 191 Cal.App.3d at p. 894.) However, assuming these claims were preserved, the FEIR adequately explained the reasoning behind its focus on morning traffic congestion. The FEIR explained the morning traffic was addressed because school arrival times coincide with morning peak traffic. Because school departure times (between 2:30 and 3:30 p.m.) occur when traffic is relatively light, and school traffic is negligible at afternoon rush hour and evenings, the FEIR explained it is a "standard and acceptable analysis technique for school-related traffic impact studies" to omit analysis of these other times. Responding to concerns expressed by City over the absence of baseline information concerning noon hour and weekend traffic conditions, the FEIR similarly explained that school-related traffic during these times was so negligible that it was a "standard and acceptable analysis technique for school-related traffic impact studies" to omit analysis of those times. On appeal, City cites no evidence, expert or otherwise, suggesting traffic impact studies for schools are inadequate if they do not analyze baseline conditions for time frames other than morning arrival hours.

The Absence of Road Segments Analysis Claim

County complains the EIR was inadequate because there were no data concerning traffic volumes and LOS on "nearby road segments." Even assuming the issue is preserved,^[16] County's complaint is rather oblique because County does not identify what other segments (apart from the segments that converged to form the five intersections closest to the Project on which data were gathered) should have been included within the study, or show how the absence of information on LOS at these unidentified road segments rendered the FEIR inadequate to serve the purposes of informed decisionmaking and informed public participation. (Dry Creek, supra, 70 Cal.App.4th at p. 26.) An EIR is presumed adequate and, on this record, County has not carried its burden of demonstrating how the absence of information on traffic volumes at undefined tertiary road segments rendered it inadequate. (Cf. Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1617.)

The Ignored Intersections Claim

City and County also challenge the sufficiency of the FEIR's baseline analysis because it analyzed only five intersections. However, the report stated that seven principal streets would provide access to the Project and analyzed all of the intersections in the vicinity of the Project formed by those streets.^[17] Comments from several critics during the review period asserted that additional identified intersections should have been studied or, as stated in City's comment letter, "an explanation [be given] as to why it was not necessary to analyze same." The FEIR explained the rationale for not studying the additional identified intersections.^[18] Nothing more is required. (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 363 [CEQA satisfied if FEIR explains drafters' reasoning and data underlying that reasoning].)

The Gymnasium and Stadium Traffic Claim

County asserts the analysis of direct impacts was defective because the analysis of the impacts on traffic congestion caused by traffic generated by events at the planned gymnasium and stadium was inadequate. The report did quantify the number of trips that an event at these venues would generate. Moreover, County cites nothing suggesting this perceived deficiency was raised during the comment period. (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at p. 1198; Resource Defense Fund v. Local Agency Formation Com., supra, 191 Cal.App.3d at p. 894.) Finally, even were this claim deemed preserved, the report explained the impacts were not further evaluated because events at the gymnasium and stadium would be episodic and highly variable in nature.

The Methodology/Guidelines Claim

County asserts the traffic analysis was inadequate because it did not use the prescribed methodology or adhere to the promulgated guidelines of City, Caltrans District 11, or County's Congestion Management Program. However, the test of adequacy is not whether the analysis is "irrefutable or . . . could have been better" (Laurel Heights I, supra, 47 Cal.3d at p. 409), but instead is whether it is sufficiently credible to provide a substantial basis for an informed decision. (Ibid.) VUSD explained why it adopted one methodology over the others, and County cites nothing suggesting either that noncompliance with any of the above-referenced guidelines is per se fatal to the adequacy of the traffic analysis or that any particular element prescribed by the other guidelines was essential to adequately analyze the traffic impact of the Project.^[19]

C. The Cumulative Impacts Claim

City and County argue the FEIR's assessment of the Project's cumulative impacts on traffic was inadequate. CEQA requires that an EIR discuss the cumulative effect on the environment of a project in conjunction with other closely related past, present and reasonably foreseeable probable future projects. (Guidelines, §§ 15130, 15355.) However, "the discussion need not provide as great detail as is provided for the effects attributable to the project alone. The discussion should be guided by the standards of practicality and reasonableness . . . ." (Guidelines, § 15130, subd. (b).)

The FEIR performed its cumulative impacts analysis by projecting the traffic loads that would burden the vicinity of the site by 2008 (the Project's opening date) apart from the Project, and then calculating the direct traffic load the Project would add to the vicinity (3600 car trips per day), and adding those loads together to determine what combined impact the Project and non-Project traffic would have on congestion in the vicinity of the site. County argues this approach was inadequate because it did not perform the analysis by listing "past, present, and probable future projects producing related or cumulative impacts" (Guidelines, § 15130, subd. (b)(1)(A)) but instead relied on an "unsubstantiated 'growth factor' " of 12 percent when prognosticating the non-Project related traffic loads. City separately asserts this approach was inadequate because it examined only the Project's direct impact on traffic when it opened and improperly ignored the cumulative impact the Project would have on traffic 20 years in the future.

We are not persuaded by County's claim because VUSD expressly adopted method "B" to evaluate the cumulative traffic impacts of the Project. CEQA permits the cumulative impacts analysis to be performed in one of two ways. Under method "A," the EIR may list "past, present, and probable future projects producing related or cumulative impacts" (Guidelines, § 15130, subd. (b)(1)(A)) and then consider those nonproject impacts cumulatively with project impacts. Under method "B," the EIR may rely on "[a] summary of projections contained in an adopted general plan or related planning document . . . [that] described or evaluated regional or areawide conditions" (id. at subd. (b)(1)(B)) to predict the level of nonproject impacts to be cumulated with project impacts for the cumulative impacts analysis. The FEIR, pursuant to method "B," used SANDAG's 2002 "Growth Forecasts for the City of Oceanside," which projected Oceanside would experience an annual growth rate of between 1 and 1.5 percent through 2010.^[20] The FEIR then doubled SANDAG's growth rate to assume a "'worst case' condition for analyzing cumulative impacts," including the combined impact of non-Project traffic and Project-induced traffic in the vicinity of the Project. Because the FEIR's estimate of future traffic conditions (apart from the Project) represented a good faith and reasonable effort to analyze and disclose the combined effect that Project-induced traffic would have when cumulated with non-Project traffic loads, this aspect of the FEIR satisfied the purposes of CEQA. (See Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 245-246.)

City asserts the cumulative impacts discussion was inadequate because it focused only on 2008, when the schools would open, and ignored the long range cumulative effect of the Project on traffic conditions in the vicinity. However, the report analyzed Project-induced traffic volumes by assuming a full complement of students, even though the schools would only be half full when opened in 2008; thus its analysis was based on traffic impacts through at least 2010, when the schools would be fully populated. Additionally, the analysis applied a growth rate that effectively evaluated congestion using non-Project traffic volumes that, under SANDAG's forecasts, would not be reached until 2012. Insofar as City suggests the cumulative impacts discussion was inadequate because it was required to perform an even longer-range assessment of traffic conditions in the vicinity, CEQA specifies the cumulative impacts "discussion should be guided by the standards of practicality and reasonableness" (Guidelines, § 15130, subd. (b)), and the report noted future traffic congestion would be substantially alleviated once planned and/or proposed road improvements are completed. (See fn. 14, ante.) Because the FEIR did not ignore the cumulative impact of the Project on future traffic conditions, but instead made a good faith and reasonable effort to analyze and disclose the combined effect of Project-induced traffic when cumulated with non-Project traffic loads, the cumulative impacts discussion satisfied the purposes of CEQA.

D. The "Fair Share" Claim

Background

The FEIR estimated, based on the projected growth in traffic that would burden the vicinity of the site by the 2008 opening date, the LOS at the SR-76/Melrose intersection would be at level "C" without consideration of the traffic load created by the Project. However, the FEIR projected traffic created by the Project at the morning arrival period, when added to the existing traffic, would cause the LOS to deteriorate to level "F" during that period.

The report concluded this impact could be mitigated by constructing road improvements in conjunction with the Project.^[21] The FEIR, after concluding the impacts of the Project on the SR-76/Melrose intersection were significant, proposed as its mitigation measure to "provide fair share funding of" the improvements recommended for the SR-76/Melrose intersection. VUSD found this mitigation measure would reduce the impacts of the Project on that intersection to below significant levels.

Analysis

"Fee-based infrastructure mitigation programs have been found to be adequate mitigation measures under CEQA. [Citations.] The CEQA Guidelines also recognize that when an impact is not unique to a single project, but is instead the result of cumulative conditions, the only feasible mitigation may involve adoption of ordinances or other regulations designed to address the cumulative impact. (Guidelines, § 15130, subd. (c).) Section 15130 of the Guidelines now specifically provides that an EIR may determine that a project's contribution to a cumulative impact may be mitigated by requiring the project 'to implement or fund its fair share of a mitigation measure or measures designed to alleviate the cumulative impact.' (Guidelines, § 15130, subd. (a)(3).) . . . .[¶] [However,] a commitment to pay fees without any evidence that mitigation will actually occur is inadequate." (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 140.)

City and County assert the "fair share" mitigation measure was improper because it does not identify a program that will ensure the needed improvements will timely (or even ever) be constructed.^[22] (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th 99, 140; accord, Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1186-1190.) City and County argue that because the measure instead proposed to mitigate the impact by "paying an unspecified amount of money at an unspecified time in compliance with an . . . unspecified . . . funding program" (San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 79), it is too illusory to qualify as a proper mitigation measure. (See Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-1262 (FHCA) [where funding for identified mitigation measure was speculative, and there was no mandate that measure be actually implemented as a condition to the development, agency lacked substantial evidence to conclude mitigation measure was incorporated into project as required by CEQA].)

VUSD argues its commitment to pay a "fair share" of the road improvements is the only feasible proposal available to it to mitigate the incremental impact of the Project on congestion at the SR-76/Melrose intersection. VUSD notes that, although it is the lead agency responsible for approving the Project, it does not have the authority unilaterally to approve or build the intersection improvements necessary for mitigation, and therefore it can only offer to fund construction of those improvements. Moreover, VUSD argues the growing traffic congestion afflicting this intersection is not attributable solely to the Project but instead results from the cumulative traffic growth attending numerous planned or prospective projects in the vicinity. Accordingly, VUSD asserts all of those projects should be required to contribute to the costs of mitigating that congestion (Guidelines, § 15130, subd. (a)(3)), and VUSD's "fair share" measure seeks to implement that requirement.^[23]

We agree with City and County that there is no substantial evidence to support VUSD's finding that the "fair share" measure will mitigate the traffic impacts of the Project. CEQA does not expressly require a public agency to find that a mitigation measure adopted for a project is feasible or will be implemented, but instead requires the agency to find, based on substantial evidence, that (1) the mitigation measure is "required in, or incorporated into, the project"; or (2) the measure is the responsibility of another agency and has been, or can and should be, adopted by the other agency; or (3) mitigation is infeasible and overriding considerations outweigh the significant environmental effects. (§ 21081; Guidelines, § 15091, subd. (b).) When a mitigation measure is "required in, or incorporated into, the project," the agency shall also provide the measure is "fully enforceable through permit conditions, agreements, or other measures" and must adopt a monitoring program to ensure the mitigation measure is implemented. (§ 21081.6, subds. (a), (b).) These requirements ensure a feasible mitigation measure will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. (FHCA, supra, 83 Cal.App.4th at p. 1261.)

There is no evidence that merely providing funds will mitigate the Project's impact on the intersection; instead, the traffic report stated that actually building the improvements would be necessary to mitigate the impact. VUSD correctly points out that only City and Caltrans have jurisdiction to approve the improvements, and only City has jurisdiction to enact ordinances ensuring that other projects benefited by the improvements would be compelled to contribute their "fair share" to the costs of those improvements. Although these facts may have provided substantial evidence to support a finding under section 21081, subdivision (a)(2) that intersection improvements were the responsibility of another agency and can and should be adopted by the other agency, VUSD did not make that finding.^[24]

Accordingly, there is no substantial evidence to support VUSD's finding that the "fair share" measure will mitigate the Project's impacts on the SR-76/Melrose intersection. Because VUSD did not make alternative findings of either "other agency responsibility" or "overriding considerations" concerning the Project's impacts on the SR-76/Melrose intersection, VUSD's approval of the Project was not based on adequate findings of mitigation.

E. The Infeasibility Claim

The FEIR concluded there would be significant Project impacts at the other three intersections and, although the Project's incremental traffic impacts on those intersections would be reduced to below significant impacts after planned and proposed road improvements in the vicinity were completed, there were no fiscally feasible improvements in the near term that would mitigate the impacts on the other three intersections. City and County assert that because the EIR did not identify or analyze possible mitigation measures for these three intersections, the fiscal infeasibility determination was necessarily without substantial evidentiary support. We doubt this issue is preserved.^[25] (Park Area Neighbors v. Town of Fairfax, supra, 29 Cal.App.4th at pp. 1446-1450.) However, even assuming this issue may be raised, we reject the claim the FEIR was inadequate because it did not examine unidentified or speculative temporary mitigation measures. Although an environmental impact report must identify proposed mitigation measures for adverse effects of the project, " 'CEQA does not require analysis of every imaginable alternative or mitigation measure; its concern is with feasible means of reducing environmental effects.' " (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 376.) CEQA, which defines "feasible" as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors" (Guidelines, § 15364), does not demand what is not realistically possible, considering the limitation of time, energy and funds. (Rio Vista, supra.) The discussion of mitigation measures in an FEIR must be assessed in accordance with the "rule of reason" and in the context of the principle that our role is merely to determine whether the FEIR is sufficient as an informational document. The FEIR must only consider "a reasonable range of project alternatives and mitigation measures" (id. at p. 379) and an FEIR is not inadequate because it does not discuss in detail infeasible mitigation measures. "The statute does not demand what is not realistically possible, given the limitation of time, energy and funds" and "[t]here is no need for the EIR to consider an alternative whose effect cannot be reasonably ascertained and whose implementation is deemed remote and speculative [citations]." (Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 910.)

City and County do not contend VUSD's subsidiary conclusion--completion of planned and proposed road improvements adjacent to the Project would reduce the Project's impacts on the other three intersections to below significant level--lacks evidentiary support. Instead, they apparently contend the FEIR was inadequate for not identifying or analyzing improvements that would have provided temporary, near term mitigation of impacts on the other three intersections until the planned and proposed road improvements were completed. However, City and County did not identify in their comments at the administrative level, or in either the trial court or appellate proceedings, what conceivable temporary measures should have been analyzed.^[26] Moreover, the commenting agencies (City, County, and the Department of Transportation), all of whom presumably had the expertise to assess whether there were available temporary measures to bridge the hiatus between the opening of the schools and the completion of the planned and proposed road improvements, apparently acquiesced in the FEIR's conclusion that there were no such fiscally feasible temporary measures. Accordingly, VUSD's overall conclusion--significant unmitigatable Project impacts would occur at the other three intersections until planned and proposed road improvements in the vicinity were completed, but the benefits of the school outweighed these temporary unmitigated impacts--is supported in the record.

V

THE AIR QUALITY CLAIMS

City asserts the FEIR contained an inadequate analysis of two air quality issues: carbon monoxide (CO) hot spots and PM 2.5 impacts.^[27] However, our independent review of City's comment revealed no assertion that the Air Quality component of the FEIR was deficient, and City does not direct our attention to any other comment during the administrative proceedings suggesting the DEIR's analysis of the CO hot spots and PM 2.5 impacts was inadequate. Accordingly, this issue is not preserved for appeal. (Park Area Neighbors v. Town of Fairfax, supra, 29 Cal.App.4th at pp. 1446-1450.)

VI

THE WATER AND WASTEWATER CLAIMS

City asserts the FEIR was inadequate because the Project will place demands on existing water and wastewater treatment facilities but the FEIR did not establish the projected baseline capacity of existing water and wastewater treatment facilities.^[28] City contends this informational gap necessarily deprived VUSD of any evidentiary basis for concluding the impact of the Project on such facilities would not be significant. (See, generally, County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952-955 [absence of baseline information rendered EIR an inadequate informational document on which to conclude project would have no significant impact].)

The FEIR recited the existing water and wastewater treatment capacity of City's Water Utilities Department (OWUD), the utility providing service to the site, and also noted there were planned expansions of those capacities to accommodate expected growth in the vicinity. Moreover, the FEIR recognized the Project did not "significantly increase population in the area" (because it merely "reallocate[d] students from existing school facilities rather than accommodat[ing] an entirely new student body") and that "OWUD has indicated that it could provide water and sewer services to the proposed project" subject to construction of the necessary infrastructure to serve the Project. The FEIR contains some evidence to support the conclusion that construction of the Project would not have a significant impact because the Project would not add a population requiring the construction of additional facilities beyond the existing or planned water and wastewater treatment facilities.

VII

THE SAFETY IMPACTS CLAIMS

City next asserts the proposed mitigation for the safety impacts of the Project is inadequate as a matter of law.

A. Background

The Project abuts SR-76, an already busy highway, and the FEIR acknowledged the Project-created increase in vehicular, bicycle and pedestrian traffic going to and from the Project carried a corresponding increase in the risk of accidents. The DEIR proposed four measures (in addition to the expansion of the Melrose/SR-76 intersection designed to mitigate the traffic congestion issues) to mitigate the safety concerns created by the Project. Two of the proposed measures required approval by Caltrans: measure 5.13-6 called for VUSD to lobby Caltrans to approve installation of signs on the SR-76 approaches to the school to reduced speed limits of 25 miles per hour when children were present, and measure 5.13-7 called for VUSD to lobby Caltrans to approve painted yellow school crosswalks at the Melrose/SR-76 intersection.^[29] The DEIR concluded implementation of the four described measures would reduce the impact on public safety to "[l]ess than significant" level.

Caltrans's comments on the DEIR informed VUSD it would not approve measures 5.13-6 and 5.13-7. Caltrans suggested VUSD could mitigate some of the dangers by constructing a pedestrian overcrossing (POC) over, and a raised median on, SR-76 to discourage students from crossing SR-76 at grade. In apparent response, VUSD made an 11th-hour amendment to the DEIR purporting to replace measure 5.13-7 with a newly minted measure 5.13-7 (new measure 5.13-7).^[30] New measure 5.13-7, to be implemented "prior to the issuance of certificates of occupancy, and/or as warranted," required VUSD to:

"support construction of a grade-separated interchange at Melrose Drive as part of [Caltrans's] plans for [SR-76] improvements. If the interchange does not occur, [VUSD] shall provide right-of-way within the school site, if necessary, and funding to construct a pedestrian overcrossing of [SR-76], subject to Caltrans approval and meeting a warrant analysis."

When VUSD approved the Project and certified the FEIR, VUSD's findings of fact recited that the Project created significant impacts to the safety of pedestrians and bicyclists but that implementation of the originally proposed mitigation measures would reduce the impacts to below significant levels. New measure 5.13-7 was not referenced in VUSD's findings.

B. Applicable Standards

When a project is subject to an EIR, the agency may approve the project only if it either (1) finds the adopted measures will mitigate the project's significant impacts to below significant levels or (2) adopts a statement of overriding considerations finding the unmitigated impacts are outweighed by the project benefits. (Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1023.) When an agency approves a project based on mitigation measures, the agency " 'shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures' (§ 21081.6, subd. (b)) and must adopt a monitoring program to ensure that the mitigation measures are implemented (21081.6, subd. (a)). The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded." (FHCA, supra, 83 Cal.App.4th at p. 1261, original italics, fn. omitted.)

C. Analysis

We conclude there is no substantial evidence to support VUSD's findings that the adopted mitigation measures will mitigate the impacts on public safety because there is no evidence these measures will actually be implemented. To the contrary, Caltrans specifically advised VUSD, on two separate occasions, that it would not consent either to reduced speeds limits on SR-76 or to yellow school crosswalks across SR-76. Because there is no evidence the adopted measures will be implemented, VUSD's finding that such measures will mitigate the impacts has no evidentiary support.

Assuming we could construe VUSD's approval of the Project as intending to incorporate new measure 5.13-7, City argues there is no substantial evidence to support the conclusion that new measure 5.13-7 would mitigate the safety impacts because it does not require either of the described safety features (a grade separated interchange or a POC) to be operative when the impacts it purports to mitigate--endangered pedestrians and bicyclists--arise on the day the schools begin operating. Indeed, City asserts because new measure 5.13-7 does not mandate that any safety feature ever be constructed, there is no evidence to support a conclusion the safety impacts of the Project will ever be mitigated. Accordingly, City argues VUSD had no discretion to approve the Project without adopting a statement of overriding considerations finding this unmitigated safety impact was outweighed by the benefits of the Project. (Los Angeles Unified School Dist. v. City of Los Angeles, supra, 58 Cal.App.4th at p. 1023.)

We agree with City that, even if new measure 5.13-7 had been expressly adopted, there is no substantial evidence the promulgated elements would mitigate the safety impacts of the Project to below a significant level. The DEIR stated, and VUSD does not dispute, that increased vehicular and pedestrian traffic converging on the schools in 2008 creates safety issues. The first portion of new measure 5.13-7, requiring VUSD to "support" construction by Caltrans of a grade separated intercha