McKINSTER, Acting P.J.
Ontario Mountain Village Association, plaintiff and appellant (hereafter plaintiff), appeals from the trial court's judgment denying its petition for a writ of mandate to compel defendant and respondent, City of Ontario (hereafter City), to set aside its approval of the construction of a Wal-Mart Supercenter. Plaintiff alleged in pertinent part that the subsequent environmental impact report (SEIR) did not comply with the requirements of the California Environmental Quality Act (CEQA) and therefore City improperly certified the SEIR. The trial court agreed in one limited respect and issued a peremptory writ on that one issue.
In this appeal, plaintiff contends the SEIR does not comply with CEQA in other respects alleged in its writ petition. We do not share plaintiff's view. Therefore, we will affirm the judgment.
The project that is the subject of this appeal is a Wal-Mart Supercenter that would be constructed on a 16-plus-acre site located west of Mountain Avenue and north of Fifth Street in the northwestern section of the City of Ontario. The site is developed with two large commercial buildings both of which currently are vacant. One of the vacant buildings is the site of a former Toys R Us store and the other housed both a Target store and a Ralphs/Food 4 Less. The project would demolish the vacant commercial buildings and existing parking lot and would construct a Wal-Mart Supercenter housed in a building of approximately 190,803 square feet. The Wal-Mart Supercenter would include among other things, a general merchandise store, and a grocery store.
City, as the lead agency, prepared a draft SEIR
Plaintiff appealed that approval to the city council. Although plaintiff's appeal apparently did not specify the ways in which the planning commission failed to comply with CEQA, or abused its discretion in approving the project, City nevertheless prepared a written response. The public hearing on plaintiff's appeal originally was set for September 24, 2007, but the city council postponed the hearing several times in response to plaintiff's claims that it had not given adequate notice of the hearing. The city council ultimately conducted the hearing on November 26, 2007, at which it unanimously approved the project. City filed its notice of determination the following day.
Plaintiff filed its petition for writ of mandate on December 26, 2007. In that petition plaintiff alleged CEQA and Brown Act violations. Plaintiff filed first and second amended petitions but ultimately dismissed all allegations except those pertaining to CEQA. The trial court conducted a hearing on the CEQA issues on May 12, 2009. At the conclusion of that hearing the trial court took the matter under submission. On July 6, 2009, the trial court issued its ruling in which it granted the petition with respect to one allegation, namely that the SEIR did not adequately address the traffic safety impact caused by so-called big rig trucks making deliveries to the project. Therefore, on August 20, 2009, the trial court issued a peremptory writ of mandate directing City to prepare an analysis of that impact that complies with the requirements of CEQA. Plaintiff appeals from that judgment.
"In reviewing an agency's compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts' inquiry `shall extend only to whether there was a prejudicial abuse of discretion.' [Citation.] Such an abuse 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.' [Citations.]" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427, fns. omitted.) "An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: The appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review under CEQA is de novo. [Citations.]" (Id. at p. 427; see also § 21168.5.)
Plaintiff first contends that the SEIR is invalid because City failed to consult with two private schools located within one-fourth mile of the project and to give them notice of the project, purportedly as required under Public Resources Code
It is undisputed that City did not consult with or give notice to schools located at Redeemer Lutheran Church and Prince of Peace Church. It also is undisputed that both locations are within one-fourth mile of the project. City contends that the consultation was not necessary because the emphasized language in section 21151.4 only requires consultation with the pertinent "school district" and not with individual schools, and in any event the section only applies when the facility constructed or altered will emit hazardous air emissions but not when the emissions occur in the construction or alteration process. City contends the air emissions that occur as a result of the construction process are addressed in section 4.5 of the SEIR. Plaintiff, on the other hand, claims that section 21151.4 applies when the construction or alteration process causes hazardous air emissions. Resolution of this issue involves interpretation, or construction, of the statute in question.
"Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them `their usual and ordinary meaning.' [Citation.] `The statute's meaning controls the court's interpretation unless its words are ambiguous.' [Citations.] `If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.]" (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388.)
Section 21151.4 is subject to two interpretations. One is that consultation and notice to the school district are required when the project involves the construction or alteration of a facility that might reasonably be anticipated to emit hazardous air emissions and that facility is within one-quarter mile of a school. The other interpretation is that notice and consultation are required when the project involves the construction or alteration of a facility within a quarter mile of a school that might reasonably be anticipated to emit hazardous air emissions. The latter interpretation although literal is nevertheless unreasonable because it results in the school being the source of hazardous air emissions or the handler of extremely hazardous substances. Because only one interpretation of section 21151.4 is reasonable we must conclude the statute, although poorly drafted, is not ambiguous and applies when the project involves construction or alteration of a facility that might reasonably be anticipated to emit hazardous air emissions or handles an extremely dangerous hazardous substance, and that facility is within one-quarter mile of a school.
If section 21151.4 were directed at hazardous emissions or extremely hazardous substances emitted during the construction or alteration of a project, as plaintiff contends, the statute would have said as much. It does not. As quoted above, section 21151.4, subdivision (a) refers to "any project" that involves "construction or alteration of a facility" located within one-fourth of a mile of a school "that might reasonably be anticipated to emit hazardous air emissions, or that would handle an extremely hazardous substance or a mixture containing extremely hazardous substances." Plaintiff's interpretation requires us to ignore the term "facility," something we cannot do under the well-settled rules of statutory construction. (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 114 ["Wherever reasonable, interpretations which produce internal harmony, avoid redundancy, and accord significance to each word and phrase are preferred."].)
Plaintiff does not dispute that the Wal-Mart Supercenter project in this case is not such a facility. Because this case does not involve a facility within the meaning of section 21151.4, we must conclude the statute does not apply. Because the statute does not apply, we need not and therefore will not resolve the question of whether private schools within a quarter mile of a qualifying project must be consulted and given notice.
Plaintiff next contends the SEIR is inadequate because it does not sufficiently evaluate (1) air quality impacts, specifically the "many serious lung-related illnesses" the project's air pollution will cause; (2) urban decay in the surrounding communities, in particular vacant retail store space; and (3) whether traffic flow on road segments will be reduced to a level below that permitted by City's general plan (General Plan).
The CEQA Guidelines
Plaintiff contends the SEIR fails to assess potential health hazards resulting from the project. According to plaintiff, the SEIR only looked at the potential for the project's air emissions to cause cancer. It did not consider other serious health risks the project poses for "nearby elderly, children, and other sensitive receptors," such as (1) cardiovascular disease in women caused by fine particulate pollution, (2) lung development problems in children and increased risk of asthma and pulmonary distress from ozone and nitrogen dioxide, and (3) death from ozone.
Plaintiff's characterization of the SEIR is incorrect. The SEIR identifies various air pollutants, including fine particulate matter, ozone, and nitrogen dioxide, which the project will generate. The SEIR identifies lung damage and premature death as health consequences of exposure to ultra fine particulate matter; aggravation of respiratory and cardiovascular diseases, eye irritation, and impairment of cardio-pulmonary function as health consequences of exposure to ozone and nitrogen dioxide, the precursor to ozone. Plaintiff's complaint is that the SEIR does not also analyze the adverse health effects of those air pollutants on specific population groups. However, plaintiff does not cite any authority to support a claim that such analysis is required.
Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield Citizens), which plaintiff relies on to support its claim, involves a CEQA challenge to the development of two retail shopping centers located within four miles of each other. The projects' EIR's identified significant adverse air quality impacts but failed to correlate those impacts to the resulting health consequences. Citing CEQA Guideline section 15126.2, subdivision (a) which "requires an EIR to discuss, inter alia `health and safety problems caused by the physical changes' that the proposed project will precipitate," the Fifth District Court of Appeal held it is not enough for an EIR to identify the "significant and unavoidable adverse impacts on air quality." (Bakersfield Citizens, at p. 1219.) The EIR must also include an "acknowledgment or analysis of the well-known connection between reduction in air quality and increases in specific respiratory conditions and illnesses." (Id. at p. 1220.)
The SEIR in this case correlates identified air pollutants and resulting air quality reduction caused by the project with the well-known adverse health consequences associated with those air pollutants. In short, plaintiff is wrong in its assertion that the SEIR addresses only cancer as a potential adverse health consequence of increased air pollution caused by the project. The SEIR complies with section 15126.2 of the CEQA Guidelines, plaintiff's contrary claim notwithstanding.
We also do not share plaintiff's view that City was required to respond in the SEIR to all evidence plaintiff presented regarding adverse health consequences associated with the various air pollutants the project will emit. The three studies plaintiff cites concern the general proposition that ambient levels of various air pollutants adversely affect human health in various ways. For example, plaintiff cites an article from the National Institute of Environmental Health Sciences that shows a link between the level of fine particulate pollution and cardiovascular disease in postmenopausal women. The article does not include information that connects the specific level of fine particulate pollution caused by the project to cardiovascular disease in women. Similarly the articles plaintiff cites that show a link between ozone and increased respiratory problems in children address the issue only as a general proposition rather than in terms that focus specifically on levels of air pollution related to those resulting from the project.
The SEIR, as previously noted, identifies cardiovascular disease and impaired respiratory function as adverse health consequences that are associated with the air pollutants that the project will emit. "CEQA 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. [Citation.]" (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26, citing Cal. Code Regs., tit. 14, § 15151.) CEQA does not require, as plaintiff suggests, that the SEIR analyze "how many kids playing soccer at the park across the street [from the project] could develop asthma, how many kids living in the neighborhood and attending nearby schools could suffer from lung under-development, or how many current asthmatics could suffer acute respiratory distress because of the Project's air pollution."
An EIR is adequate if it is "prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences." (Cal. Code Regs., tit. 14, § 15151.) It "must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405.) The information quoted above regarding the type and quantity of air pollutants the project will emit and the resulting adverse health consequences associated with those pollutants is sufficient evidence to support City's finding that the SEIR is adequate and complies with CEQA.
The SEIR concluded that the project would not result in significant urban decay because even if grocery stores in the area close as a result of the project, vacant stores can be used for other purposes such as furniture stores, athletic clubs, and consignment or discount stores. Plaintiff challenges the sufficiency of the evidence to support that conclusion. Specifically, plaintiff contends the SEIR does not look at the actual demand for vacant food store space, and therefore did not adequately assess the likelihood of urban decay resulting from the project. We disagree.
We review the record "in the light most favorable to City's conclusion to determine whether substantial evidence supports the conclusion that the impact of urban decay is less than significant. [Citation.] In the CEQA context, substantial evidence `means 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.' [Citation.]" (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1183, citing Bakersfield Citizens, supra, 124 Cal.App.4th at pp. 1207-1208, and CEQA Guidelines, § 15384, subd. (a), respectively.)
In Bakersfield Citizens, the Fifth District Court of Appeal relied in part on section 15064 of the CEQA Guidelines to hold that "when there is evidence suggesting that the economic and social effects caused by the proposed [project] ultimately could result in urban decay or deterioration, then the lead agency is obligated to assess this indirect impact." (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1207.) CEQA Guideline section 15064, subdivision (e) states in pertinent part that "[e]conomic and social changes resulting from of a project shall not be treated as significant effects on the environment" but "[w]here a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change resulting from the project." (See Bakersfield Citizens, at pp. 1205-1206.) City recognized that the proposed Wal-Mart Supercenter at issue here could result in urban decay and therefore it addressed that indirect environmental consequence in the SEIR.
As defined in the SEIR, "[u]rban decay refers to the physical and social degradation of urbanized areas due to the spread of blight, resulting in decreases in population and underutilization of buildings and infrastructure associated with vacancy and/or lack of use. The cause of urban decay can be attributed, in part, to increased competition and/or other economic factors that lead to business closures. Over time, unused buildings deteriorate, which can adversely affect the visual and aesthetic characteristics of the surrounding area." In other words, urban decay occurs over time. (See Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1208 [Urban decay results from "a ripple of store closures and consequent long-term vacancies that would eventually result in general deterioration and decay within and outside the market area of the two shopping centers."].)
The SEIR concluded that no significant urban decay would occur as a result of the project. The SEIR contains extensive evidence directed at this issue. The pertinent evidence, in our view, consists of an economic impact analysis and a vacancy analysis both prepared by Keyser Marston Associates (KMA), City's economic consultant, included in Appendix J to the SEIR. In its economic impact analysis of the project, KMA concluded there is an oversupply of food store space both in the City of Ontario and within the two-mile market area. According to the analysis, the project will increase the oversupply of food stores in the City, but will offset the shortage of food store space in the market area, defined in the analysis as Ontario, Chino, Pomona, Montclair, Claremont, Upland, and Rancho Cucamonga.
In its vacancy analysis, KMA cited its August 2005 economic impact analysis and also referred to a September 30, 2005, memorandum that addressed "food store sales within two miles of the proposed project."
To that end, KMA identified 10 types of tenants that would be likely to occupy vacant grocery store space, and also noted the existing locations of those types of tenants within various distances from the project. According to the vacancy analysis, six of the 10 identified tenant types are located within one mile of the project. The four remaining tenant types are located within 1.1 and 1.2 miles of the project. KMA also reported that of 19 former grocery store locations within a seven mile radius of the project, all but one had been reoccupied. The length of time the former grocery store sites were vacant ranged from three months to seven years. KMA's vacancy analysis concludes, "In the event that there is a food store vacancy, there are several viable tenant types that can reuse the space. Of these, furniture/home furnishing stores, athletic clubs and consignment or discount stores appear to be the most likely retenanters [sic] of any vacated food stores." City included this conclusion in the SEIR, as noted above, to support a finding that the project would not result in urban decay.
The evidence supports the noted finding. Briefly summarized the facts contained in the KMA analysis show that in the past when grocery stores in the subject area have gone out of business, other businesses reoccupied the vacant space within three months to seven years of the grocery store closing. From that evidence City reasonably could infer that if the project exacerbates the oversupply of grocery stores in the area and as a result grocery stores go out of business, the vacant grocery store space will be reoccupied within a similar time frame, and therefore urban decay would not result. In other words, the vacancy analysis is circumstantial evidence from which the City could draw the noted inference.
Plaintiff contends that the finding in the SEIR that the project will not conflict with the General Plan is not supported by substantial evidence because the SEIR did not discuss the project's potential to increase traffic on road segments to levels prohibited by the General Plan. We disagree.
As stated in the SEIR, City's General Plan Policy 12.2 requires that the level of service on roadway segments be "at least a Level of Service D," and "at least Level of Service E for intersections on all streets whenever possible." The SEIR explains, "The Level of Service (LOS) is a qualitative and quantitative measure used to describe the operational conditions within a traffic stream and a motorist's and/or passenger's perception of the roadway's performance. LOS is designated a letter from A to F, with LOS A representing free flowing traffic conditions. LOS B represents stable flow, with more restrictions and operating speeds beginning to be affected by traffic volumes. LOS C represents stable flow, with more restrictions and speed and maneuverability more closely controlled by higher traffic volumes. LOS D represents high density but stable flow, with traffic volumes severely restricting traffic flow. LOS E represents operating conditions at or near capacity level, with low but relatively uniform speeds. LOS F represents forced or breakdown flow, with many stoppages and low operating speeds. [Citation.] [¶] LOS is typically dependent on the quantity of traffic flow and the intersection."
In addressing consistency with the General Plan, the SEIR states, in pertinent part, that, "Roadway performance is controlled by the performance of intersections, more than roadway segments. Roadway intersections in the area would operate at LOS D or better, with the mitigation provided in Section 4.4, Transportation and Circulation." The SEIR explains, "For the proposed project, the area roadways consist of closely-spaced, controlled (stops or signals) intersections, where the intersections will govern the roadway LOS. Therefore, LOS D is used as the LOS threshold and peak hour intersection operations at LOS E or F are considered deficient (Tom Danna, pers. comm. 2/14/2007)." "While levels of service for roadway segments may also be measured in terms of LOS, to analyze traffic flow and congestion, roadway performance is controlled by the performance of intersections, and more specifically, by intersection performance during peak traffic periods. This is because traffic control at intersections interrupts traffic flow that would otherwise be relatively unimpeded. For this reason, existing peak hour operating conditions were evaluated for the study intersections in the project area [citation]."
The foregoing explains the methodology used in the SEIR to discuss both roadway segments LOS and intersection LOS. That explanation refutes plaintiff's assertion that the SEIR did not examine roadway segments. Plaintiff does not take issue with the results of the analysis conducted using the noted methodology, which state, as previously noted, that, "Intersection operations dictate traffic flows and LOS would be D or better on roadway segments and intersections with the implementation of the proposed roadway improvements and identified mitigation measures." Because the SEIR does address LOS on roadway segments, we must reject plaintiff's claim.
Plaintiff's final claim in this appeal is that City abused its discretion by failing to consider a traditional Wal-Mart store as a reasonable alternative to the project. A traditional Wal-Mart, according to plaintiff, is one that does not sell groceries.
Section 15126.6, subdivision (a) of the CEQA Guidelines requires that the environmental impact report "describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives." As the Supreme Court stated in Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, "CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. Informed by that purpose, we here reaffirm the principle that an EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, or to the location of the project, which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code, § 21002); and (2) may be `feasibly accomplished in a successful manner' considering the economic, environmental, social and technological factors involved. [Citations.]" (Id. at p. 566, emphasis omitted.)
The significant environmental impacts of the project identified in the SEIR frame the scope of the alternatives considered. In this case, City identified air pollution as the most significant environmental impact and considered six alternatives in the SEIR, including one described as a "Lower Intensity Alternative" consisting of "an approximately 64,000-square-foot shopping center, with 32,000 square feet of grocery area and 32,000 square feet of retail merchandise area would be built on the site under this alternative." The lower intensity alternative would be "expected" to reduce potential air quality impacts below the pertinent thresholds.
Plaintiff does not claim and therefore does not show that a traditional Wal-Mart would reduce air quality impacts below the reduction accomplished by the alternatives considered in the SEIR. Instead, plaintiff argues that a traditional Wal-Mart would not cause other grocery stores to close and therefore would not cause urban decay. The SEIR, as previously discussed, contains sufficient evidence to support the City's finding that the project would not result in urban decay. Our conclusion that substantial evidence supports City's finding on that issue also disposes of plaintiff's claim that City should have considered a traditional Wal-Mart as a reasonable alternative. In short, plaintiff has not demonstrated that a project that does not include a grocery store has advantages beyond the alternatives considered in the SEIR.
The judgment is affirmed in all respects.
We concur:
King, J.
Miller, J.
