This appeal arises under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)
CEQA describes the EIR as an informational document. Its purpose is to provide public agencies, and the public, with detailed information about the effect a proposed project is likely to have on the environment; to list ways in which the significant effects of a project might be minimized; and to identify alternatives to a project. (§ 21061.) Neighbors for Smart Rail (petitioner), a nonprofit California corporation comprised of a coalition of homeowners' associations, community groups and unaffiliated citizens, sought a writ of mandate. Petitioner asked the trial court to order the Expo Authority to vacate and set aside its approval of the EIR and other project approvals. The trial court denied the petition.
Petitioner appeals, arguing that the Expo Authority used an improper baseline for analyzing the impacts of the project on traffic, air quality and greenhouse gas emissions. Petitioner contends the Expo Authority improperly evaluated the significance of those environmental impacts using baseline conditions in 2030. According to petitioner, the Expo Authority should have used baseline conditions that existed sometime between 2007, when the notice of preparation of the Expo Phase 2 project was filed, and 2010, when the Expo Authority certified the final EIR. The use of hypothetical future conditions as the baseline for analyzing the environmental impacts of the
Petitioner also contends the EIR was inadequate on several other grounds, arguing (1) the traffic analysis failed to address potential traffic impacts on Sepulveda Boulevard, which serves as a de facto alternative route when traffic is particularly bad on the Interstate 405 Freeway (I-405); (2) the analysis of growth-inducing impacts did not discuss the potential impacts of concentrating new development around the planned transit stations; (3) the analysis of cumulative traffic impacts did not consider the localized traffic impacts of related projects, in particular the "Casden Project," a probable future mixed-use project adjacent to the proposed Sepulveda transit station; (4) mitigation measures were inadequate (and improperly deferred) to reduce adverse impacts related to parking, noise and vibration, safety and construction; and (5) the EIR failed to adequately evaluate grade separation as a design alternative to at-grade crossings between Overland Avenue and Sepulveda Boulevard.
Finally, petitioner contends the Expo Authority made "major changes" after circulation of the draft EIR, but failed to recirculate the EIR and permit additional comment, as is required when significant new information is added to an EIR after notice and public comment but before certification.
We find no merit in petitioner's contentions and affirm the judgment. Because we disagree with Sunnyvale and Madera, and hold that use of projected future conditions as a baseline for analyzing environmental impacts is proper in this case, we publish that portion of our opinion.
The project under review is called the Exposition Transit Corridor Project Phase 2, referred to in the EIR as "Expo Phase 2." Its purpose is to extend high-capacity, high-frequency transit service from the "Expo Phase 1" terminus at the Venice/Robertson station in Culver City to Santa Monica.
After various preliminary procedures, including a public "scoping" period during which the Expo Authority received and considered over 1,800 comments from public agencies and individuals concerning the project design and proposed alternatives, the Expo Authority circulated a draft EIR. The draft EIR included six alternatives: a "No-Build" alternative, consisting of the existing transit services plus improvements "explicitly committed to be
The four LRT alignments were further broken down into segments for purposes of environmental analysis. Segment 1 of two of the LRT alignments included four consecutive at-grade (street level) crossings, where the proposed LRT line crosses Overland Avenue, Westwood Boulevard, Military Avenue, and Sepulveda Boulevard, as well as an at-grade station and a 170-space parking lot within the right-of-way east of Westwood Boulevard. The draft EIR also discussed several alternatives that were rejected by the Expo Authority; none of them included grade-separated crossings in Segment 1.
The Expo Authority received almost 9,000 written and oral comments on the draft EIR. In response to the comments, the Expo Authority undertook more technical and environmental analyses, as well as agency coordination and community outreach. These additional efforts resulted in changes to the LRT alternatives and new design options that were included in the final EIR.
The changes to the LRT alternatives included a grade-separated (elevated) crossing at Centinela Avenue, a third northbound lane on Sepulveda Boulevard, and the redistribution of parking from the Colorado/4th Street station to nearby City of Santa Monica public parking facilities. The new design options included, among others, a grade-separated (elevated) crossing at Sepulveda Boulevard, elimination of parking at the Expo/Westwood station, and an alternative layout for the maintenance facility that created additional space between the facility and a nearby residential area.
The Expo Authority also further analyzed the Overland Avenue and Westwood Boulevard grade crossings in coordination with the Los Angeles Department of Transportation (LADOT), and confirmed that those crossings would operate safely at grade, with effects mitigated to a less than significant level. (The final EIR described two design options for grade separation (a trench under Overland Avenue and Westwood Boulevard and an aerial structure) at those crossings, but concluded that grade separation at those locations "would not be needed to mitigate significant impacts, and if anything, would generate other environmental impacts," and did not evaluate either of those design options.)
On February 4, 2010, after a public hearing, the Expo Authority certified the final EIR and approved the Expo Phase 2 project, adopting LRT Alternative 2 with modifications. The Expo Authority adopted detailed findings of fact, a statement of overriding considerations, and a mitigation monitoring and reporting program.
Petitioner sought a writ of mandate invalidating the Expo Authority's certification of the EIR and setting aside the approval of the Expo Phase 2 project. Judgment was entered denying the petition for a writ of mandate on March 4, 2011, and this appeal followed.
The relevant details of the EIR will be set out in the course of our discussion.
We first describe the settled principles guiding our review in CEQA cases, and then address in turn each of the challenges petitioner interposes to the adequacy of the final EIR.
In an action to set aside an agency's decision under CEQA, the court's inquiry extends only to whether there was a prejudicial abuse of discretion. Abuse of discretion occurs if the agency has not proceeded in a manner required by law, or if its decision is not supported by substantial evidence. The court passes only upon the EIR's sufficiency as an informative document, not upon the correctness of its environmental conclusions. (Laurel Heights I, supra, 47 Cal.3d at p. 392.) CEQA Guidelines,
Laurel Heights I cautions that a court may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. (Laurel Heights I, supra, 47 Cal.3d at p. 393.) CEQA's purpose is to compel government to make decisions with environmental consequences in mind, but CEQA "`does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.'" (Laurel Heights I, at p. 393.) Technical perfection in an EIR "`"is not required; the courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure."'" (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 979 [99 Cal.Rptr.3d 572].)
The appellate court's inquiry is the same as that of the trial court. The appellate court reviews the administrative record independently to determine whether the Expo Authority complied with CEQA or made determinations that were not supported by substantial evidence. (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 912 [100 Cal.Rptr.2d 173]; see also § 21168.) "The burden of showing that the EIR is inadequate is on the party challenging the EIR." (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1562 [135 Cal.Rptr.3d 380] (Pfeiffer).)
An EIR uses an environmental baseline to analyze the impacts of a project. The Expo Authority found the population and traffic levels that were current in 2009 did not provide a reasonable baseline for determining the significance of traffic and air quality impacts of the project and, instead, used future, 2030 baseline conditions to make that determination. Petitioner contends that, as a matter of law, projected future conditions cannot provide the baseline for reviewing the significance of environmental impacts. We disagree.
Before we address petitioner's contention in the context of this case, we summarize the law on the point as it has developed so far.
CEQA itself does not refer to a baseline, but CEQA Guidelines tell us the following: "An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant." (Guidelines, § 15125, subd. (a), italics added.)
CBE involved modifications at a petroleum refinery where the operation of four boilers (the existing steam generation equipment) was restricted by permits stating a maximum rate of heat production. To evaluate changes in nitrogen oxide (NOx) emissions that would be caused by the proposed modifications, the agency used as a baseline the maximum emissions allowed under the current permits, that is, all four boilers running at maximum capacity simultaneously, even though such simultaneous operation was not the norm. In ordinary operation, a boiler would run at maximum allowed capacity only when one or more of the other boilers were shut down for maintenance. (CBE, supra, 48 Cal.4th at p. 322.)
The court concluded the agency's baseline—simultaneous maximum operation—was "not a realistic description of the existing conditions without the [project]. . . . By comparing the proposed project to what could happen, rather than to what was actually happening, the District set the baseline not according to `established levels of a particular use,' but by `merely hypothetical conditions allowable' under the permits." (CBE, supra, 48 Cal.4th at p. 322.) This approach, using "hypothetical allowable conditions as the baseline," provided "an illusory basis for a finding of no significant adverse effect despite an acknowledged increase in NOx emissions exceeding the District's published significance threshold." (Ibid.) This use of maximum capacity levels rather than actually existing levels of emissions from the boilers, as a baseline to analyze emissions from the project, was "inconsistent with CEQA and the CEQA Guidelines." (Id. at pp. 326-327.)
Pfeiffer distinguished Sunnyvale because in Sunnyvale, the traffic baselines included only projected traffic conditions in 2020, while in Pfeiffer the baselines also "included existing conditions and the traffic growth anticipated from approved but not yet constructed developments." (Pfeiffer, supra, 200
In this case, the Expo Authority described the existing physical environmental conditions in the EIR and acknowledged that, under CEQA Guidelines, those conditions would normally constitute the appropriate baseline physical conditions for determining whether an impact is significant. For most environmental topics, the Expo Authority found existing conditions to be the appropriate baseline—but not for traffic and air quality impacts. Instead, the Expo Authority "elect[ed] to utilize the future baseline conditions for the purposes of determining the significance of impacts to traffic and air quality," finding that "the existing physical environmental conditions (current population and traffic levels) do not provide a reasonable baseline for the purpose of determining whether traffic and air quality impacts of the Project are significant."
Thus, the Expo Authority defined the "No-Build" alternative as consisting of existing transit services and "improvements explicitly committed to be constructed by the year 2030" as defined in SCAG's 2008 regional transportation plan,
Petitioner objects to the Expo Authority's approach, contending, based on Sunnyvale and Madera, that it fails to comply with CEQA by using "hypothetical `future' conditions as the baseline for analyzing impacts on traffic, air quality, and climate change . . . ." Further, petitioner objects that use of the No-Build conditions as the environmental baseline was improper because the No-Build conditions represent a future, hypothetical scenario that assumes the completion of various regional transportation improvements. Petitioner objects, for example, that the "threshold for assessing the Project's potential impacts on the operation of selected street intersections was whether the Project would cause an intersection's level of service (`LOS') `under the No-Build [alternative]' to deteriorate from an acceptable LOS to an unacceptable LOS . . .' by 2030." Petitioner argues that the use of existing conditions at the intersections as the baseline "would have likely revealed additional and/or more severe traffic impacts" than were identified with the use of 2030 as the baseline. Petitioner makes similar objections with respect to the EIR's analysis of air quality and greenhouse gases.
Consequently, we reject the notion that CEQA forbids, as a matter of law, use of projected conditions as a baseline. Nothing in the statute, the CEQA Guidelines, or CBE requires that conclusion. To the extent Sunnyvale and Madera purport to eliminate a lead agency's discretion to adopt a baseline that uses projected future conditions under any circumstances, we disagree with those cases.
Sunnyvale emphasized case law indicating that an EIR "`must focus on impacts to the existing environment, not hypothetical situations.'" (Sunnyvale, supra, 190 Cal.App.4th at p. 1373.) And the court cited CBE's conclusion that the lead agency in that case was required to "compare `existing physical conditions' without the project to the conditions expected to be produced by the project because `[w]ithout such a comparison, the EIR will not inform decision makers and the public of the project's significant environmental impacts, as CEQA mandates. (§ 21100).'" (Sunnyvale, at p. 1375, quoting CBE, supra, 48 Cal.4th at p. 328.) Sunnyvale pointed out that in CBE the Supreme Court "never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as the `baseline' for assessing a project's environment consequences." (Sunnyvale, at p. 1375.) But neither did the Supreme Court forbid the use of projected future conditions; the point was simply not at issue.
In the end, Sunnyvale holds that "[t]he statute [(CEQA)] requires the impact of any proposed project to be evaluated against a baseline of existing environmental conditions (see §§ 21060.5, 21100, subd. (d), 21151, subd. (b); see also CEQA Guidelines, § 15125, subd. (a)), which is the only way to identify the environmental effects specific to the project alone." (Sunnyvale, supra, 190 Cal.App.4th at p. 1380, italics added.) But none of the statutory provisions or Guidelines cited "requires" that conclusion. Moreover, Sunnyvale cites no authority for its own conclusion that use of a baseline of current conditions "is the only way" to identify impacts "specific to the project alone" (Sunnyvale, at p. 1380)—and we find that conclusion is erroneous
If "projected traffic levels as of the expected date of project approval" (Sunnyvale, supra, 190 Cal.App.4th at p. 1380) may be an appropriate baseline, then projected traffic levels as of the expected date the project will come online, or some later date in the planning horizon, may also be appropriate. The important point, in our view, is the reliability of the projections and the inevitability of the changes on which those projections are based. The objective is to provide information that is relevant and permits informed decisionmaking. Nothing in the use of a baseline of future projected conditions, not "hypothetical allowable" conditions, has been shown to be inconsistent with the provisions of CEQA or with its purpose. Accordingly, we reject Sunnyvale's conclusion that, as a matter of law, CEQA requires, for "any proposed project," that the significance of its impact on the environment be measured against a baseline of conditions existing, at the latest, at the time the project is approved. (Sunnyvale, at p. 1380.) Neither the language nor the purpose of the statute and the Guidelines requires that conclusion in every case.
Petitioner also relies on Madera, a case involving a mixed-use development project and whether a proper baseline was used to analyze the project's traffic impacts. In that case, the Fifth District followed Sunnyvale, finding its
Before we leave this subject, we note that respondents devote a considerable part of their briefs to showing that substantial evidence supports the methodologies and projections used by the Expo Authority to determine the significance of traffic and air quality impacts in this case. We need not dwell on this point at any length, because petitioner does not suggest that the
3., 4.
The CEQA Guidelines say that several elements are necessary to an adequate discussion of significant cumulative impacts. As relevant here, these include:
1. Either a "list of past, present, and probable future projects producing related or cumulative impacts," or a "summary of projections contained in an adopted local, regional or statewide plan, or related planning document, that describes or evaluates conditions contributing to the cumulative effect" (Guidelines, § 15130, subd. (b)(1));
3. "A reasonable analysis of the cumulative impacts of the relevant projects. An EIR shall examine reasonable, feasible options for mitigating or avoiding the project's contribution to any significant cumulative effects." (Guidelines, § 15130, subd. (b)(5).)
The Guidelines specifically state that previously approved land use documents, "including, but not limited to, general plans, specific plans, [and] regional transportation plans . . . may be used in cumulative impact analysis." (Guidelines, § 15130, subd. (d).)
The EIR in this case identified the two alternatives permitted by the CEQA Guidelines for discussion of cumulative impacts (the "list of projects" approach and the "summary of projections" approach), and indicated that: "For purposes of this project, a `blended' cumulative impacts analysis has been conducted based on a summary of projections from SCAG's 2008 RTP [(regional transportation plan)], Metro's 2009 Long Range Transportation Plan, and the Culver City, Los Angeles and Santa Monica General Plans, together with funded and unfunded improvement projects from the 2008 RTP and Metro's 2009 Long-Range Transportation Plan. In addition, a list of recently proposed or planned projects was evaluated for potential cumulative effects."
With respect to cumulative traffic impacts, the EIR contains no separate analysis, instead referring the reader to the analysis provided in the EIR's discussion of transportation and traffic impacts of the project itself, explaining that the latter analysis was "based upon both existing and future conditions, with and without the project."
Petitioner contends the EIR's analysis of cumulative traffic impacts was inadequate because it failed "to consider the localized traffic impacts of related projects and other deficiencies." No "other deficiencies" are identified. Petitioner asserts the EIR does not meet the second and third of the three requirements listed above—that it does not "provide a summary of the expected environmental effects to be produced by the related projects . . . and fails to meaningfully analyze the Project's potential cumulative impacts." Petitioner complains that the EIR "ignores known, related projects that will have direct, localized, cumulative impacts that are not captured by the `summary of projections,' thereby failing to comply" with the CEQA Guidelines.
Petitioner identifies only one specific deficiency. Petitioner cites the Casden Project—which is identified in the EIR as proposing 265,000 square feet of
We see no inadequacy in the Expo Authority's approach. The Expo Authority identified the Casden Project along with many others in its "List of Recent Projects Included in the Cumulative Assessment." But no application had been made for that project when the notice of preparation of the Expo Phase 2 project was filed in February 2007, or when the draft EIR was issued in January 2009. On that basis alone, the Expo Authority arguably was not required to consider the Casden Project.
In San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 74-75 [198 Cal.Rptr. 634], the court held that "`foreseeable probable future projects'" included projects "currently under environmental review," and found CEQA was violated when a cumulative impacts analysis is based only on approved projects and projects under construction. (San Franciscans, at p. 72.) (While it did not discuss the point, the court apparently rejected the contention that "projects formally announced by developer also should have been considered." (Id. at p. 74.)) Petitioner relies on Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1127-1128 [85 Cal.Rptr.3d 50] (Gray), where the court said that "any future project where the applicant has devoted significant time and financial resources to prepare for any regulatory review should be considered as probable future projects for the purposes of cumulative impact." (Ibid.) But petitioner
The more important point, however, is that the EIR's analysis of project impacts included traffic conditions in 2030 with and without the project, relying on projections in SCAG's regional transportation plan, Metro's long-range plan, and the general plans for the relevant municipalities. Consequently, traffic increases and intersection delays based on those plans were indeed taken into account, albeit in a more generalized way than petitioner would prefer.
Petitioner contends the EIR failed to provide adequate mitigation measures, and improperly deferred the formulation of mitigation measures, in the areas of parking, noise and vibration, public safety, and construction. We summarize the legal requirements, and then discuss each contested area in turn.
When mitigating changes have been required to avoid the significant effects, the agency must "adopt a reporting or monitoring program for the changes, . . . designed to ensure compliance during project implementation." (§ 21081.6, subd. (a)(1).) And 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).) "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." (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261 [100 Cal.Rptr.2d 301], italics omitted (Federation).)
In the discussion of mitigation measures, an EIR "need not be exhaustive or perfect; it is simply required to `describe feasible measures which could minimize significant adverse impacts.'" (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 696 [125 Cal.Rptr.2d 745].) "We review the EIR's discussion of mitigation measures by the traditional substantial evidence standard. It is not our task to determine whether adverse effects could be better mitigated." (Ibid.)
The EIR concludes that the demand for parking "will exceed the proposed supply at several stations, potentially resulting in some parking intrusion into adjacent neighborhoods. Spillover parking in the neighborhoods around the stations can be expected to occur around all of the stations except the Sepulveda/National." To mitigate this potentially significant impact, the Expo Authority adopted mitigation measure MM TR-4, providing that: "In the quarter mile area surrounding each station where spillover parking is anticipated, a program shall be established to monitor the on-street parking activity in the area prior to the opening of service and shall monitor the availability of parking monthly for six months following the opening of service. If a parking shortage is determined to have occurred (i.e., existing parking space utilization increases to 100 percent) due to the parking activity of the LRT patrons, Metro shall work with the appropriate local jurisdiction and affected communities to assess the need for and specific elements of a permit parking program for the impacted neighborhoods. The guidelines established by each local jurisdiction for the assessment of permit parking programs and the development of community consensus on the details of the permit program shall be followed. Metro shall reimburse the local jurisdictions for the costs associated with developing the local permit parking programs within one-quarter mile of the stations and for the costs of the signs posted in the neighborhoods. Metro will not be responsible for the costs of permits for residents desiring to park on the streets in the permit districts. For those locations where station spillover parking cannot be addressed through implementation of a permit program, alternative mitigation options include time-restricted, metered, or shared parking arrangements. Metro will work with the local jurisdictions to determine which option(s) to implement." The EIR concluded this mitigation measure would reduce the impacts of station spillover parking to a less than significant level.
Petitioner contends the record does not contain substantial evidence of the "feasibility or effectiveness" of MM TR-4, as there is "no assurance that any such [permit parking] program will ever be formed, or that it would be effective in preventing `spillover' parking," or that the alternative mitigation options would be implemented or effective. Petitioner further complains the measure is "improper deferral" of mitigation, that residents will have to pay for permits, and that, under Gray, supra, 167 Cal.App.4th at page 1119, the mitigation measure is inadequate unless it "ensure[s] that residents in the vicinity of LRT stations will retain their ability to park in their neighborhoods in substantially the same manner to which they are currently accustomed." We understand petitioner's concern, as would any resident of Los Angeles, Culver City or Santa Monica, but we disagree with this contention.
The Gray case is not analogous to this case. This is not a case where the effectiveness of a mitigation measure "defies common sense." (Gray, supra, 167 Cal.App.4th at p. 1118.) The change to permit parking for residents in neighborhoods near transit stations makes sense and is "substantially similar" to parking without the need for a permit; it is obviously not the same, but residents will still have street parking. We are not persuaded that permit parking will fail to reduce the impact of spillover parking.
Nor do we accept the claim that the measure is inadequate for lack of "assurance" that permit parking programs will be formed and effective in preventing spillover parking. The mitigation measure sets a specific performance standard—monitoring parking activity to determine if LRT activity increases parking utilization to 100 percent—and if it does, Metro undertakes to work with local jurisdictions, to follow their guidelines for permit parking programs, and to reimburse their costs. (See Defend the Bay, supra, 119 Cal.App.4th at p. 1275 [deferral of specifics is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered].) We will not assume, as petitioner implicitly suggests, that simply because the Expo Authority cannot require a local jurisdiction to adopt a permit program, the mitigation measure is inadequate. (Cf. § 21081, subd. (a) [one of the possible findings an agency may make with respect to a significant effect is that changes mitigating or avoiding the significant effect "are within the responsibility and jurisdiction of another public agency and have been, or can
The Expo Phase 2 project will eliminate street parking in some areas along the project corridor. One of these is on the south side of Colorado Avenue between 14th Street and Lincoln Boulevard and on either the north or south side of the street between Lincoln Boulevard and 4th Street. Surveys revealed moderate to intensive use of those spaces with little excess capacity on adjacent side streets, requiring mitigation measures to reduce the impacts of displaced street parking spaces. (The Expo Authority's responses to comments on this issue show that of 56 parking spaces proposed to be eliminated on the south side of Colorado Avenue between 14th Street and 4th Street, 35 were regularly used.)
The EIR proposed mitigation measures as follows:
"MM TR-9 Colorado Avenue. Replacement parking would be required along impacted portions of Colorado Avenue. The potential replacement parking lots are listed below. Additional replacement options could include implementation of diagonal parking on adjacent streets (after extensive neighborhood outreach), or the implementation of design options, which would reduce the extent of parking impacts[.][
"MM TR-9(a) South side of Colorado Avenue, between 14th Street and 11th Street. Property would have to be acquired to provide replacement parking. Potential parcels on the south side of Colorado Avenue between 18th Street and 16th Street have been identified.
The EIR concluded that implementation of these mitigation measures would reduce the impact of displaced parking spaces to less than significant.
Petitioner contends there is no evidence these measures would be feasible, and that the Expo Authority's ability to acquire replacement lots is "purely speculative" because of high land costs. Petitioner again claims there is "no assurance that replacement parking will actually be provided" and, therefore, as in Federation, supra, 83 Cal.App.4th at page 1261, "great uncertainty as to whether the mitigation measures would ever be funded or implemented." But as we have seen (fn. 13, ante, at p. 581), in Federation the agency "acknowledged . . . that there was great uncertainty as to whether the mitigation measures would ever be funded or implemented." (83 Cal.App.4th at p. 1261.) There was no such evidence here, and no such uncertainty.
Petitioner does not challenge the EIR's financial evaluation of the Expo Authority's ability to build the project, which includes allowance for mitigation measures. (See also Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 163 [68 Cal.Rptr.3d 449] ["[h]ere, unlike Federation, there is nothing to suggest the mitigation measures will not be implemented"; the appellant pointed to "nothing in Federation or any other case that requires the EIR to discuss funding for mitigation measures"].) The parking mitigation measures explicitly state that property "would have to be acquired to provide replacement parking," and parcels have been identified for that purpose. These mitigation measures are not uncertain or speculative, and it is feasible to acquire the identified parcels for parking. Again, petitioner has not met its burden to demonstrate any deficiency.
Petitioner challenges mitigation measure MM NOI-1, which the EIR states will ensure that operational noise levels will be below the applicable FTA (Federal Transit Administration) impact threshold for moderate noise impact. The measure provides for installation, at certain locations, of sound walls—a mitigation measure widely used on highways and rail transit lines—or, alternatively, the construction of a landscaped berm parallel to the rail line, or some combination of sound wall and berm. This would eliminate the predicted noise impact "[e]xcept where noise impacts are due to special trackwork at crossovers and turnouts . . . ." In these instances (and in the case
Petitioner objects that, for the situations where the sound walls and berms will not suffice, the EIR gives no information on "how such improvements [(sound insulation, etc.)] to private structures would actually be `provided' by Expo or Metro"; there is no evidence "that it would be feasible to do so in all cases"; residents affected would have to keep their windows closed; and the mitigation measures would not mitigate noise impacts while residents are outdoors.
The EIR acknowledges that emergency vehicles traveling on streets intersecting at-grade crossings may encounter some delay when a light rail vehicle
Petitioner contends there is insufficient evidence the mitigation measure would be effective, and insufficient evidence the cities would "actually implement any of the necessary `updates' to their emergency response plans," again creating, as in Federation, "great uncertainty as to whether the mitigation measures would ever be funded or implemented." (Federation, supra, 83 Cal.App.4th at p. 1261.) Petitioner's citation to Federation is misplaced (see discussion in fn. 13, ante, at p. 581), and we see no reason to conclude the cities involved will fail to act to update their emergency procedures to address "any change in circulation patterns associated with the project," just as other municipalities have in the past. (Cf. § 21081; Guidelines, § 15091, subd. (a)(2) [an agency may find that changes that will avoid or lessen a significant environmental effect "are within the responsibility and jurisdiction of another public agency" and "can and should be adopted by such other agency"].) Petitioner has not shown any inadequacy in the Expo Authority's mitigation of potential safety impacts.
The EIR found that construction of the project could result in the closure of one or more lanes of a major/arterial traffic-carrying street for an extended period of time (one month or more) during construction. The Expo Authority proposed three mitigation measures that it concluded would reduce this significant impact to a level less than significant.
First (MM CON-1), the Expo Authority is required to provide "at least one lane of traffic in each direction on access cross streets that are not going to be
Second (MM CON-2), "Worksite Traffic Control Plans (WTCP) and Traffic Circulation Plans, including identification of detour requirements, will be formulated in cooperation with" the cities and other affected jurisdictions "in accordance with the Work Area Traffic Control Handbook (WATCH) manual and Manual on Uniform Traffic Control Devices (MUTCD) as required by the relevant municipality." The Worksite Traffic Control Plans "will be based on lane requirements and other special requirements defined by" the LADOT and the other municipalities "for construction within their city and from other appropriate agencies for construction in those jurisdictions." These plans must also "be designed to maintain designated Safe Routes to School wherever possible during times of the year when nearby schools are in session."
Third (MM CON-3), no designated major or secondary highway will be closed to vehicular or pedestrian traffic "except at night or on weekends, unless approval is granted by the jurisdiction in which it is located."
Petitioner contends there is no evidence these measures would be effective or feasible, because (1) there are no standards by which relevant jurisdictions may grant approval for weekday street closures under MM CON-3, and (2) MM CON-2 does not address "the potential safety impacts that may arise where maintaining . . . designated Safe Routes to School would not be possible," and "improperly defers mitigation without including any performance standards," so there is no evidence the measure would be enforceable.
The law does not require that an EIR specify the standards under which different jurisdictions will decide whether or not to approve weekday road closures. The EIR contemplates that major arteries will not be closed during nonweekend and nonevening hours without that approval, which is an acceptable performance standard. Moreover, as the Expo Authority points out, MM CON-3 must be considered in conjunction with the other mitigation measures that address the same impact (closure of major/arterial streets). MM CON-2 contains multiple performance standards that must be satisfied before major arterial streets may be closed during construction, whether in the evening or otherwise. The Expo Authority is required to comply with the traffic control and traffic circulation plans that are formulated in cooperation
The "`statutory requirements for consideration of alternatives must be judged against a rule of reason.'" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 565 [276 Cal.Rptr. 410, 801 P.2d 1161] (Goleta Valley).) "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." (Id. at p. 566.) An EIR "need not consider every conceivable alternative to a project." (Guidelines, § 15126.6, subd. (a).) An EIR "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 [(§ 21002)]; and (2) may be `feasibly accomplished in a successful manner' considering the economic, environmental, social and technological factors involved." (Goleta Valley, at p. 566, italics omitted, citing § 21061.1 & Guidelines, § 15364.) "Among the factors that may be used to eliminate alternatives from detailed consideration in an EIR are: (i) failure to meet most of the basic project objectives, (ii) infeasibility, or (iii) inability to avoid significant environmental impacts." (Guidelines, § 15126.6, subd. (c).)
Petitioner contends the EIR here is inadequate because it did not "consider an alternative or design option with grade-separation in Segment 1 (from and
We see no inadequacy in the EIR's failure to include a detailed examination of an alternative with grade-separated crossings in Segment 1 instead of at-grade crossings. It is unnecessary to consider "every conceivable alternative" (Guidelines, § 15126.6, subd. (a)), and the EIR evaluated every at-grade crossing in each of the LRT alternatives. We do not find the EIR's discussion of grade separation at Overland and Westwood to be "cursory." The EIR discussed a trench option (underground grade separation) and an aerial structure, and concluded grade separation was unnecessary to mitigate significant impacts, and indeed would create other environmental impacts. The summary of its grade-separation analysis was this:
"In summary, the proposed at-grade alignment at Overland Avenue and Westwood Boulevard could operate safely and minimize impacts to a less-than-significant level, as required by CEQA. As such, a grade separation in these locations would not be needed to mitigate significant impacts, and if anything, would generate other environmental impacts. Construction impacts associated with a grade separation at Overland Avenue and Westwood Boulevard would be more extensive and disruptive to the adjacent community and nearby school. In addition, grade separating Overland Avenue and Westwood Boulevard would substantially increase costs, requiring more local funding and reducing the project's overall cost effectiveness with respect to [Federal Transit Administration] standards. Further, the at-grade crossings would be consistent with Metro's policy guidance for evaluating grade crossings relative to safety, traffic, and other considerations.
"As a result of the community impacts, constructability issues, and cost implications, the Expo Phase 2 project objectives are better accomplished and CEQA significance thresholds are achieved with an at-grade configuration of both Overland Avenue and Westwood Boulevard. Therefore, a trench under Overland Avenue and Westwood Boulevard is not recommended
In short, petitioner has not shown that detailed consideration of an alternative with grade-separated crossings was required, or that such an alternative might have offered "substantial environmental advantages over the project proposal. . . ." (Goleta Valley, supra, 52 Cal.3d at p. 566; see also Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1177-1178 [243 Cal.Rptr. 339] ["The range of alternatives is governed by the `rule of reason,' which requires only an analysis of those alternatives necessary to permit a reasoned choice."].) Every at-grade crossing was evaluated in connection with other alternatives, and the impacts of the project were mitigated to a less than significant level. The "rule of reason" governs (Goleta Valley, supra, 52 Cal.3d at p. 576), and each case "must be evaluated on its facts . . ." (id. at p. 566). On this record, we conclude the Expo Authority evaluated a reasonable range of alternatives.
Petitioner argues that the final EIR reflected "major changes" to the project made after circulation of the draft EIR, requiring recirculation of the EIR in draft form for further public comment.
Laurel Heights II continued: "[R]ecirculation is not required where the new information added to the EIR `merely clarifies or amplifies [citations] or
The substantial evidence standard governs the lead agency's decision not to recirculate an EIR, with reasonable doubts resolved in favor of the administrative decision. (Laurel Heights II, supra, 6 Cal.4th at p. 1135.)
Petitioner contends "significant new information" was added to the final EIR, including new information on grade separation at various intersections; signal phasing at the intersection of Westwood Boulevard and Exposition Boulevard North; parking; and noise impacts (all described, post).
Petitioner also points out that in the final EIR, a proposed parking lot at the Colorado/4th Street station that had been in the draft EIR was eliminated. The final EIR concludes that the approximately 215-space demand for parking at the station could be accommodated in adjacent existing public parking facilities in downtown Santa Monica. Finally, petitioner complains of an added design option that, if implemented, would permit the elimination of a proposed 170-space "park-and-ride" lot at the Expo/Westwood station. But petitioner identifies no reason to believe this option would alter the conclusions reached after the additional parking surveys were performed: that demand for replacement parking for removed spaces could be accommodated in various ways including permit parking. Further, the final EIR indicates that if this design option is used, "[t]o address community concerns regarding the loss of on-street parking along Westwood Boulevard, 20 parking spaces would be dedicated to neighborhood residents east of Westwood Boulevard
Petitioner complains the public was denied the opportunity to comment "on the efficacy and potential impacts of these additional sound walls, as well as potential mitigation measures to address such impacts." Again, this contention misconstrues the meaning of "significant new information." The Expo Authority conducted additional noise testing and analysis in more locations in response to comments on the draft EIR, focusing on sensitive receptors including studios, schools and residential areas. That further analysis identified additional receptors that were affected, but with the addition of five soundwalls—the same established mitigation technique identified in the draft EIR—the noise levels "will be below the applicable FTA impact threshold for moderate noise impact."
New information requires recirculation of the EIR if it shows a "substantial increase in the severity of an environmental impact . . . unless mitigation measures are adopted that reduce the impact to a level of insignificance." (Guidelines, § 15088.5, subd. (a)(2).) So, even if one concludes the increase in the number of affected receptors amounted to a substantial increase in the severity of the noise impacts, mitigation measures were adopted (the additional soundwalls) reducing the impact to less than significant. And petitioner does not suggest how or why any of the additional soundwalls might have a significant environmental impact. Accordingly, recirculation was not required. (See Laurel Heights II, supra, 6 Cal.4th at p. 1132 ["the Legislature did not intend to promote endless rounds of revision and recirculation of EIR's"; recirculation "was intended to be an exception, rather than the general rule"].)
The judgment is affirmed. Respondents shall recover their costs on appeal.
Bigelow, P. J., and Flier, J., concurred.