IRION, J.
Woodridge Farms Estates, LLC (Woodridge) appeals from the trial court's judgment and writ of mandate in favor of Save Desert Rose (SDR), ruling that the City of Encinitas (the City) should have required the preparation of an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)
In 2009, Woodridge filed an application seeking approval from the City's planning commission of a tentative map and the issuance of a design review permit for a real estate development on a 7.87-acre lot in the City, located in the community of Olivenhain (the Project).
The Project includes the removal of the equestrian facilities (stables, riding rings and associated outbuildings), grading of the site, creation of street improvements, dedication of a public recreational trail for equestrian use, installation of drainage and stormwater treatment facilities, and the planting of landscaping. As relevant here, as part of the grading and landscaping activity, the Project would remove up to 34 trees within the Project site, primarily consisting of eucalyptus and pine species,
The Project parcel is zoned for residential development and is bordered by a residential neighborhood on the south and west. Located along the northern and eastern boundaries of the parcel is a .56-acre wetland and riparian habitat, consisting of a natural drainage channel that is an unnamed tributary of Escondido Creek. There is currently no buffer between the equestrian facility and the wetland. Consequently, the wetland is a poorly developed riparian habitat, with the presence of numerous nonnative plant species and lack of vegetation in some areas, and it supports a low diversity and number of animal species, none of which are sensitive species.
According to the City's General Plan and Municipal Code, a 50-foot-wide buffer generally should be used for proposed development adjacent to riparian wetland areas, but in some cases smaller buffers may be appropriate.
After receiving Woodbridge's application, the City staff prepared an initial study pursuant to CEQA, summarizing and evaluating the various technical studies that were prepared for the Project by outside consultants.
The MND proposed by City staff contained the following relevant items: (1) if trees are removed from the Project site during Cooper's Hawk nesting season, a qualified biologist shall conduct a survey three days prior to determine whether there are any active nests, and if so, a buffer shall be set up and no removal of those trees shall occur until the nesting cycle is complete; (2) a minimum 25-foot-wide biological open-space easement shall be recorded as shown on the tentative map between the development and the wetland habitat, which shall include a 25-foot buffer protected by permanent fencing, with no gates, to prevent intrusion by cats and other pets;
The planning commission held a public hearing on November 1, 2012, and thereafter issued a resolution denying Woodridge's application, with a three-to-two vote. In denying the application, the planning commission declined to adopt the MND and found that "the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially or avoidably injure fish or wildlife or their habitat."
Woodridge appealed the planning commission's decision to the City Council, and the City Council conducted public hearings on January 23 and March 13, 2013, with the City's staff preparing answers to several questions posed by the City Council following the January 23 hearing. In a resolution adopted April 17, 2013, the City approved Woodridge's application for the Project and formally adopted the MND. The City Council found that "with incorporation of the mitigation measures contained in the MND . . ., the proposed subdivision is not likely to cause substantial environmental damage or substantially or avoidably injure fish or wildlife or their habitat."
In addition to adopting the MND, the City Council approved Woodridge's application with certain other conditions that are relevant here. Specifically, the City required that Woodridge provide the public equestrian trail proposed for the Project, and it required that Woodridge comply with certain engineering and geotechnical conditions, including compliance with stormwater management regulations and drainage requirements. Before any grading takes place for the Project, Woodridge is required to apply for and obtain a grading permit and meet several other requirements, including obtaining approval from the City of a plan to implement stormwater best management practice controls, and submit a geotechnical report.
SDR filed a petition for writ of mandate in the trial court to challenge the City's adoption of the MNR, and Woodridge and the City both opposed SDR's petition. The trial court ruled in favor of SDR and issued a writ of mandate, setting aside the City's approval of Woodridge's application and adoption of the MND, and enjoining Woodridge from taking any step to further the Project that could result in an adverse change to the environment pending lawful approval from the City. The trial court's statement of decision concluded that "the record establishes substantial evidence existed to make a fair argument that the project may cause a significant adverse effect on the environment such that the City Council should have prepared an [EIR] instead of issuing [an MND]."
Woodbridge appeals from the trial court's judgment.
Under CEQA, "[a]n EIR provides detailed information about the likely effect a proposed project may have on the environment, lists ways in which significant effects might be minimized and indicates alternatives to the project. (. . . § 21061.) An EIR is required whenever there is a `"fair argument"' that significant impacts may occur. [Citation.] [¶] When there is no substantial evidence before the lead agency that the project may have a significant effect on the environment, a negative declaration instead of an EIR, is appropriate. (. . . § 21080, subd. (c)(1).) When the initial study identifies potentially significant effects on the environment, but revisions in the project plans would avoid or mitigate the effects to insignificance, a MND is appropriate. (. . . § 21064.5.)" (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 399.) "`Significant effect on the environment' means a substantial, or potentially substantial, adverse change in the environment." (§ 21068.)
"Application of the fair argument standard of review presents a question of law, not fact, and we do not defer to the agency's or the trial court's determinations on this issue. [Citation.] `Rather, we independently "review the record and determine whether there is substantial evidence in support of a fair argument [the proposed project] may have a significant environmental impact, while giving [the lead agency] the benefit of a doubt on any legitimate, disputed issues of credibility."'" (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 900.)
The party challenging an agency's decision not to prepare an EIR "has the burden of proof `to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.' [Citation.] `Unless the administrative record contains this evidence, and [petitioners] cite[] to it, no "fair argument" that an EIR is necessary can be made.'" (Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 778.) In this context, as set forth in the CEQA Guidelines, "`[s]ubstantial 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. . . . Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence," and "[s]ubstantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." (Cal. Code Regs., tit. 14, § 15384, subds. (a), (b).)
If the petitioner demonstrates substantial evidence to support a fair argument of a significant effect on the environment "the reviewing court must set aside the agency's decision to adopt a negative declaration or a mitigated negative declaration as an abuse of discretion in failing to proceed in a manner as required by law." (Citizens for Responsible and Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1332.)
As it did in the trial court, SDR identifies several different categories of alleged significant environmental impacts from the Project, which it contends required that the City prepare an EIR rather than adopt the MND. Specifically, SDR identifies alleged impacts on (1) biological resources; (2) aesthetics, views and community character; (3) water quality and drainage; (4) traffic; (5) neighborhood streets and safety; and (6) parking. We consider each of these categories in turn.
SDR's argument concerning the Project's impact on biological resources focuses on the two categories that the City's initial study also identified as potential significant environmental impacts prior to the adoption of the MND, namely, the possible harm to nesting raptors in the eucalyptus trees on the Project site and (2) the impact to the wetland habitat from the residential development proposed by the Project.
Concerning the removal of the trees that are currently on the Project site, SDR contends that the administrative record supports a fair argument that the removal of those trees will have a significant negative effect on sensitive raptor species. In support of its argument, SDR points to the 2009 biological report prepared for the initial study, which states that the Project site contains "[n]umerous [e]ucalyptus trees that could potentially serve as nesting sites for Cooper's Hawks," a sensitive bird species. SDR also points to two neighborhood residents' general comments about "the value of the on-site trees for habitat."
We reject SDR's contention that the record raises a fair argument of significant impact from the Project on Cooper's Hawks or other sensitive raptors. Initially, we note that during the biological survey of the site — which consisted of eight visits over the course of one and half years — there was no evidence of Cooper's Hawks, their nests, or any other sensitive raptor species or avian nests. Second, although it is undisputed that Cooper's Hawks use eucalyptus trees during the nesting season, there is no evidence in the record that eucalyptus tree nesting habitat is in short supply in the area surrounding the Project site such that removal of the trees on the site would significantly impact the ability of Cooper's Hawks to nest in the area. Instead, the sole concern regarding Cooper's Hawks in the biological assessment report prepared for the Project is that nesting Cooper's Hawks may be impacted if trees are removed during nesting season; there is no concern expressed about loss of eucalyptus tree habitat in the area. Third, SDR acknowledges that the MND addresses the possible harm to any nesting Cooper's Hawks that may build nests on the Project site prior to construction by providing that, immediately before the eucalyptus trees are scheduled to be removed, a biologist will determine whether Cooper's Hawks are currently nesting in the trees, and if so, tree removal will be delayed until after the nesting cycle is complete. Accordingly, as any nesting Cooper's Hawks will be undisturbed by the Project and there is no evidence eucalyptus tree habitat is in short supply in the surrounding area, the record does not support a fair argument that the Project will have a significant negative impact on Cooper's Hawks or other sensitive raptors.
SDR's argument regarding the Project's possible impact on the wetland habitat bordering the Project site on the north and east focuses on evidence in the record pertaining to whether it would have been better for the City to require a 50-foot-wide buffer rather than a 25-foot-wide buffer between the housing development and the wetland habitat. As we will explain, based on the applicable standard for determining whether a significant effect on the environment has been identified, the evidence that SDR relies upon does not raise a fair argument that the Project will significantly impact the wetland habitat.
When conducting an analysis under CEQA to determine whether the record supports a fair argument of a significant impact on the environment, "impacts of a proposed project are ordinarily to be compared to the actual environmental conditions existing at the time of CEQA analysis." (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 321.) Under this rule, "the baseline for CEQA analysis must be the `existing physical conditions in the affected area' . . . that is, the `"real conditions on the ground."'" (Ibid., citations omitted.) An analysis under CEQA "`must focus on impacts to the existing environment, not hypothetical situations'" because "[a]n approach using hypothetical allowable conditions as the baseline results in `illusory' comparisons that `can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts,' a result at direct odds with CEQA's intent." (Id. at p. 322.)
Here, as we have explained, the record shows that there is currently no buffer between the equestrian facility on the Project site and the wetland habitat. Indeed, some of the equestrian facilities are within a few feet of the wetland habit. Further, the wetland habitat is of poor quality because it contains numerous exotic species and, in some places, lacks vegetation. It is against this baseline condition that we must assess whether the record supports a fair argument that the Project will have a significant negative impact on the wetland habitat.
The record establishes that the measures included in the Project to protect the wetland habitat will improve the habitat over its current condition. The Project will create a 25-foot-wide buffer where none currently exists, dedicated as an open-space easement; a six-foot-tall fence will be constructed to further protect the wetland habitat from disturbance; a wetland enhancement plan will be implemented to remove exotic plant species and promote the growth of native wetland vegetation; and the harmful effects of urban runoff into the wetland habitat will be addressed by the City's requirement that the Project comply with up-to-date stormwater management and drainage standards. None of these measures to protect the wetland habitat exists as part of the current baseline condition.
Nevertheless, SDR contends that the record supports a fair argument that the Project will significantly and negatively impact the wetland habitat due to comments in the record concerning the proposal of a 25-foot-wide buffer rather than a 50-foot-wide buffer. However, as we will explain, these comments do not support SDR's argument because they are directed to a different issue, namely whether the City should have required a 50-foot buffer for the Project over a 25-foot buffer, rather than whether the Project will have a significant negative impact on the baseline environmental condition of the wetland habitat as it currently exists.
The main evidence upon which SDR relies is a letter from biologist Anita M. Hayworth. Hayworth stated that based on the scientific literature regarding the use of buffers to protect wetland habitats, "much of the sediment and nutrient removal occurs within the first 15 to 30 feet of the buffer but that having a wider buffer, up to 100 feet or more, is able to remove pollutants more consistently. A number of studies indicate . . . that no buffers of 25 feet or less were functioning fully to reduce disturbance to the wetlands." (Italics added.) Hayworth explained that "a wetland buffer of 50 feet . . . would provide improved protection of the wetlands from human disturbance and other indirect impacts that can occur with a development." (Italics added.) However, Hayworth's comments that it is preferable to use a wider buffer are not evidence of a possible significant impact on the baseline environmental condition of the wetland habitat for at least two reasons.
First, currently no buffer exists between the equestrian facility and the wetland habitat. Thus, even though Hayworth may be correct that a 50-foot-wide buffer would provide more protection of the wetland habitat than a 25-foot-wide buffer, a buffer of any width would still be an improvement to the protection of the wetland habitat. Indeed, Hayworth does not state that a 25-foot buffer will fail to provide any protection to the wetland habitat; she simply states that a wider buffer would provide improved protection. Second, Hayworth's comments do not take into account the other measures that are incorporated into the Project to protect the wetland habitat, the use of which the state and federal wildlife agencies concluded made a 25-foot buffer an adequate width to protect the wetland habitat. Specifically, Hayworth does not account for the fact that the buffer will provide protection to the wetland habitat in conjunction with (1) a six-foot high fence separating the development from the wetland habitat, (2) a wetland restoration plan that will remove exotic species and promote the growth of native riparian plants;
SDR also relies on the comments of two local conservation groups regarding the benefits of having a 50-foot-wide buffer. A letter from the San Elijo Lagoon Conservancy states, "The proponent of the reduction claims that the 25 feet will be restored to a higher quality habitat than currently exists on the site. This may be the case, but ecologically a 50[-foot] buffer not restored protects the creek better than the proposed modification."
The comments from both conservation groups are vague and unsupported by any scientific studies. More importantly, they fail to provide evidence of a significant impact to the environment for the purposes of a CEQA analysis on the same grounds as Hayworth's comments: (1) they state that a 50-foot-wide buffer is preferable to a 25-foot-wide buffer, although the current baseline condition is no buffer, which provides no protection to either the wetland habitat or the downstream lagoons and beaches; (2) and they fail to account for the other measures that the Project will implement to protect the wetland habitat and that will act in conjunction with the 25-foot buffer to protect the environment.
The next category that SDR identifies as being significantly impacted by the Project is "aesthetics, views, and community character."
SDR discusses aesthetics and views together, with the argument that mature trees currently on the property will be cut down, impacting the "scenic resources" of the neighborhood. A CEQA analysis properly takes into account the aesthetic impact of a proposed project. "Under CEQA, it is the state's policy inter alia to `[t]ake all action necessary to provide the people of this state with . . . enjoyment of aesthetic, natural, scenic, and historic environmental qualities.' (§ 21001, subd. (b); italics added.) The CEQA initial study checklist asks four questions as to aesthetic impact, including whether a project will `[s]ubstantially degrade the existing visual character or quality of the site and its surroundings.' . . . [¶] Thus, courts have recognized that aesthetic issues `are properly studied in an EIR to assess the impacts of a project.'" (Pocket Protectors v. City Of Sacramento (2004) 124 Cal.App.4th 903, 936-937, citations omitted.)
With respect to the Project's impact on aesthetics and views, SDR argues that the public's view of the property from the surrounding streets and recreational trails will no longer be of an equestrian facility with mature trees, but will be of newly built houses and newly installed landscaping, impacting the visual quality of the site and its surroundings. In support of its argument, SDR identifies photographs in the record showing that a person walking on a public recreational trail near the property currently has a view of mature trees when looking toward the property.
We reject SDR's argument because the Project, as proposed, will sufficiently mitigate for the removal of trees on the property to address the impact that tree removal will have on the visual character of the site. Although the grading of the site for the Project will require the removal of 34 trees, the landscaping plan for the Project includes the planting of 48 new trees. The view from the neighborhood of the Project site will not be of a barren and unattractive lot as SDR suggests, but rather of a property that contains more trees than it formerly did.
With respect to the Project's impacts on community character, SDR argues that having a residential development on the site rather than an equestrian facility will significantly change the character of the neighborhood. Specifically, SDR argues that the loss of a horse boarding facility will impact community character, as the record contains evidence that Olivenhain is an equestrian-friendly community, with 21 miles of horse trails in the area and 371 residents owning horses, and thus has "the `feeling of country.'" As we will explain, SDR fails to identify a significant impact to the environment with respect to community character.
For one thing, the loss of a commercial enterprise, such as the horse boarding facility at issue here, is not an impact on the environment for the purposes of CEQA. (South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1614 (South Orange County Wastewater Authority).)
Moreover, although SDR contends that the Project is inconsistent with the equestrian nature of the community, equestrian uses in the neighborhood will actually be enhanced by the Project because the Project will build and dedicate a public equestrian trail through the Project site, where none existed before. Despite SDR's focus on the current equestrian use of the Project site, it is undisputed that the Project site is zoned for residential use and the surrounding neighborhood is residential. Thus, the development of the Project as single-family residences, with a portion of the property dedicated to a public equestrian trail, is fully consistent with the existing character of the neighborhood as a residential area focused on equestrian activities.
Relying on comments by Richard Horner, an expert in urban stormwater management, who reviewed certain documents concerning the stormwater management and drainage plans for the Project, SDR contends (1) the Project's stormwater management system, as currently planned, may not be adequate to prevent water runoff into the wetland habitat, resulting in a significant impact to the environment; and (2) without an adequate erosion control system in place during construction, the wetland habitat could be damaged by erosion while the Project is being built. We discuss each issue in turn.
As an initial matter, it is important to note that the main documents specific to the Project upon which Horner based his understanding of the Project's stormwater management plan were (1) a Preliminary CEQA Drainage Study by Construction Testing and Engineering, Inc. (CTE, Inc.), dated April 1, 2010; (2) a Water Quality Technical Report by CTE, Inc., dated November 15, 2011; and (3) the tentative map for the Project. Horner stated that the stormwater management plans that he reviewed were too preliminary and not well-developed enough to determine whether they would adequately protect the environment. One thing Horner pointed out was that according to a United States Department of Agriculture (USDA) survey, the soil occurring in the vicinity of the Project includes a type of soil ("hydrologic soil group D"), which may not be infiltrative enough to make bioretention basins a proper choice for stormwater management, but that soil testing of the Project site had not been conducted to determine how much hydrologic soil group D was present.
Horner summarized his analysis of the problems with the stormwater management plans, as reflected in the documents he reviewed, as follows: "The stormwater management plan rests principally on bioretention facilities, which work primarily by infiltrating runoff to the soil, also with some evaporation. The developer proposes this system on a site with soils that have not been characterized by adequate site-specific testing, but that appear to have an extensive hydrologic soil group D component, the least infiltrative soils. The intention, apparently, is to use underdrains in some facilities, surely the ones thought to be in those D soils. However, without careful site investigation, it is little more than a guess if a given location will be in D or the more favorable B soils shown in the USDA survey. A bioretention cell in the D setting without an underdrain is very likely to fail by not retaining its influent runoff but instead discharging it on the surface. The [P]roject should not be considered for approval until the site soils and hydrogeology are thoroughly investigated . . . and the resulting information applied in a thorough reconsideration of the stormwater management plan." Based on this statement, Horner does not say that it is impossible to design an adequate stormwater management plan for the Project. Instead, he takes the position that the existing plan should be more closely considered, and perhaps revised, after soils testing is completed to determine the presence of hydrologic soil group D.
Woodridge's engineering firm, CTE, Inc., responded to Horner's letter. It agreed with Horner that when excess hydrologic soil group D is present, it is not proper to rely solely on infiltration-based stormwater best management practices. However, CTE, Inc. pointed out that according to the standards that Woodridge is required to follow by the City, "if during grading it is determined that the post-compaction condition of soils where bio-retention basins will be located do not provide adequate infiltration characteristics, [Woodridge] would be required by the City to apply amendments to achieve necessary soils structure and percolation rates of between 0.5 and 3 inches per hour." Further, CTE, Inc. explained that "according to the City's [Stormwater M]anual, all bioretention facilities are required to install underdrains to convey water that cannot infiltrate."
As a condition for proceeding with the grading of the site, Woodridge is required to show compliance with the City's Stormwater Manual, which contains specific and detailed regulations for the design and implementation of a stormwater management plan, including those requirements for bioretention basins and soil infiltration characteristics discussed by CTE, Inc. Further, Woodridge must supply the City with a geotechnical report prior to obtaining a grading permit. Therefore, based on CTE, Inc.'s comments in response to Horner, and the requirement that the Project comply with applicable stormwater regulations, we conclude that the issues raised by Horner are not sufficient to raise a fair argument that the Project will have significant effect on the environment due to stormwater runoff. As CTE, Inc. explained, all of the issues raised by Horner are addressed either in the Project documents themselves, or through the City's conditions for approval of the Project, which require that Woodridge comply with detailed stormwater regulations prior to obtaining a grading permit.
To the extent that Horner found that the Water Quality Technical Report by CTE, Inc., dated November 15, 2011, was not detailed enough to establish that Woodridge would meet the applicable stormwater quality regulations, CTE, Inc. explained that "[p]rior to the issuance of a grading permit, the City . . . will require a revised [Water Quality Technical Report] detailed for construction purposes." Indeed, the City's specific conditions for approving the Project include the following statement: "The preliminary `Water Quality Technical Report' dated November 15, 2011 by CTE, Inc. as well as the preliminary grading plan drawings demonstrate that [applicable stormwater management plan] compliance generally can be achieved. However, this report and the preliminary drawings are not accepted as the final sizing and design of the required [stormwater management] facilities. This project shall be subject to stormwater quality regulations in effect at the time of issuance of grading permit." As explained in the City's conditions approving the Project, the requirements which Woodridge must meet for the grading permit to be issued are set forth in detailed applicable regulations, including the Hydromodification Management Plan section of the City's Stormwater Manual, best management practice methods, and additional requirements from the State Water Resources Control Board. SDR has identified no evidence in the record suggesting that Woodridge will be unable to comply with the applicable regulatory requirements in the more detailed stormwater management plan that it submits as a condition of obtaining a grading permit.
SDR argues that the Water Quality Technical Report submitted for the purpose of CEQA review impermissibly defers the specification of a detailed stormwater management plan to a later stage of Project construction. We disagree. When considering whether a proposed project adequately mitigates possible environmental impact under CEQA, "[d]eferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275.) As relevant here, "a condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance." (Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 906 (Oakland Heritage Alliance).) Following this principle, case law holds that when project documents require a developer to prepare a project water quality plan to reduce discharge into stormwater runoff, including "`best management practices,'" and the developer must comply with applicable codes, policies and practices to reduce runoff, a project does not impermissibly defer mitigation of possible environmental impact. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 795-796.) Here, where the City "has specified the criteria to be met," by identifying applicable stormwater regulations in its conditions for approval of the Project, and there is no basis in the record for concluding that Woodridge will not be able to comply with the applicable regulations, the level of detail of the Project's stormwater management plan "is sufficient at this early stage of the planning process." (Defend the Bay, at p. 1276.)
Horner's second criticism of the Project is that the documents he reviewed were "silent on construction-phase stormwater management" (underscoring deleted), and that "[w]ithout an effective erosion prevention plan, construction of the development is likely to increase the delivery of sediment and phosphate" to the wetland habitat and other bodies of water downstream.
SDR relies on this comment to argue that construction of the Project could have a significant impact on the environment due to runoff during construction. We reject SDR's argument because documents other than those reviewed by Horner address the mitigation of any environmental risk from erosion during construction.
First, the City's specific conditions for approval of the Project provides, "An erosion control system shall be designed and installed onsite during all construction activity. The system shall prevent discharge of sediment and all other pollutants onto adjacent streets and into the storm drain system. The City of Encinitas Best Management Practice Manual shall be employed to determine appropriate storm water pollution control practices during construction."
Second, addressing potential environmental harm from erosion during the rainy season, the City approved the Project on the condition that "no grading permit shall be issued for work occurring between October 1st of any year and April 15th of the following year, unless the plans for such work include details of protective measures, including desilting basins or other temporary drainage or control measures, or both, as may be deemed necessary by the field inspector to protect the adjoining public and private property from damage by erosion, flooding, or the deposition of mud or debris which may originate from the site or result from such grading operations."
Third, in approving the Project, the City required that Woodridge "obtain a grading permit prior to the commencement of any clearing or grading of the site." The City's municipal code requires that an application for a grading permit include erosion and sediment control plans, including descriptions of control measures. (Encinitas Mun. Code, § 23.24.150.)
Finally, as stated in the City's conditions for approval, because the Project is a grading project of more than an acre, it must meet additional requirements from the State Water Resources Control Board, which include preparing a Stormwater Pollution Prevention Plan for approval by the City. As Woodridge points out, a Storm Water Pollution Prevention Plan must address all pollutants and their sources, including sources of sediment associated with construction and construction site erosion.
Accordingly, based on the fact that Woodridge is required to (1) implement specific measures to control harm to the environment during construction based on the City's Best Management Practice Manual and follow additional measures during the rainy season; (2) submit a grading plan including detailed erosion control measures during construction; and (3) prepare a plan complying with State Water Resources Control Board's standards for controlling pollution during construction, we conclude that despite Horner's statement that he had not reviewed any documentation regarding an erosion control plan during construction, there is no basis in the record for a fair argument that the wetland habitat will be significantly impacted during construction of the Project.
In arguing that there is a fair argument that the Project will have a significant impact on traffic, SDR contends that an analysis submitted by a neighborhood resident shows that the delay at certain intersections in the area will increase to above a threshold level of significance which, pursuant to CEQA, the City has adopted to measure whether traffic impacts caused by a project will be significant, warranting the preparation of the traffic impact study as part of an EIR.
The City has adopted thresholds of significance for traffic impacts based on guidelines developed by the San Diego Regional Traffic Engineers Council (SANTEC) and the local chapter of the Institute of Transportation Engineers (ITE). As relevant here, a significant impact occurs when the level of service (LOS) at an intersection is projected to be degraded to LOS "E" or LOS "F" as a result of a project. In addition, a significant impact occurs when an intersection already operating at LOS "E" or LOS "F" is projected to incur an increased delay of more than two seconds. Here, the City determined in connection with the initial study that the Project would not have a significant impact on traffic using the applicable criteria.
A neighborhood resident, Ron Katznelson, who is not a traffic engineer, but rather an electrical engineer, prepared and submitted a study on the traffic impacts of the Project. Katznelson's study focused on projected delays during peak morning hours at three intersections on Rancho Santa Fe Road that are controlled by three- or four-way stop signs. Katznelson concluded that two of the three intersections would incur an additional delay of over two seconds in the southbound lane during peak morning hours.
Katznelson's study was reviewed and critiqued by traffic engineers at Linscott, Law & Greenspan and by the City's traffic engineering division. Both reviewers explained that Katznelson's conclusions were flawed in several respects, two of which are significant here.
First, as Linscott, Law & Greenspan and the City's traffic engineering division explained, Katznelson applied an erroneous standard in estimating the number of peak morning commute trips as 18, overestimating by three trips. Specifically, Katznelson improperly relied in his analysis on SANDAG's 2006 San Diego Household Travel Study, Final Report, which, the City engineers explained, was not intended for use as vehicle trip generation data. As the City's traffic engineering division explained, "the incorrectly derived AM peak hour trip generation estimate is carried through the entire analysis" performed by Katznelson.
Second, Linscott, Law & Greenspan explained that "[a]t signalized and `All-Way-STOP-Controlled (AWSC) unsignalized intersections, it is the standard of practice to use the
Here, because Katznelson's study was found to be flawed by experts in the field, it does not support a fair argument of significant impact to the environment due to the increased traffic on Rancho Santa Fe Road. Substantial evidence under CEQA may include "expert opinion supported by facts" (Cal. Code Regs., tit. 14, § 15384, subd. (b)) but does not include "unsubstantiated opinion or . . . evidence which is clearly erroneous or inaccurate" (id., subd. (a)). Here because Katznelson is not a traffic engineer and his analysis was deemed to be out of line with industry standards by traffic engineering experts, his study does not constitute substantial evidence. (See Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 157 [agency could properly reject evidence concerning the impact of a proposed project when the "speakers were not qualified to render an expert opinion"]; Cathay Mortuary, Inc. v. San Francisco Planning Com. (1989) 207 Cal.App.3d 275, 281 [testimony of certain witnesses did not establish a disagreement among experts on environmental impacts when that testimony "exceeded the limits of their expertise as urban planners"]; Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1352 [critique of traffic consultant's study by a layperson did "not rise to the level of substantial evidence supporting a fair argument of a reasonable possibility that the project will have a significant effect on the environment"].)
SDR's arguments as to traffic impacts fail without the support of Katznelson's study to back them up. SDR argues that the Project will cause a significant impact to traffic because it will (1) create a delay of more than two seconds at an intersection on Rancho Santa Fe Road, and (2) it will reduce the level of service at one intersection to LOS "E" to LOS "F." However, as we have explained, Katznelson's study is the only evidence supporting those conclusions. Linscott, Law & Greenspan concluded that the delay at each intersection will be less than two seconds and that the level of service at each intersection will stay the same.
Next, SDR takes issue with the initial study's conclusion that the Project would not have a significant impact in the sense that it would "substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections)," SDR points out that the preexisting public roads leading to the Project site contain curves with 15 miles per hour advisory speeds and blind sharp turns. Based on this evidence, SDR argues that the Project would have a significant impact on the safety of the neighborhood unless the City requires it to have a secondary access route that avoided those hazards.
We reject SDR's argument because it does not identify a significant impact to the environment caused by the Project itself. Instead, SDR is describing preexisting hazardous roadway conditions in the surrounding neighborhood that will impact the safety of the access route to the Project. The new road to be built on the Project site itself is a short, straight, private roadway with a wide cul-de-sac turn around at the end and does not contain hazardous road conditions. "[T]he purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project." (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473.) Thus, "`[t]o require an EIR . . . where the proposed project is challenged on the basis of preexisting environmental conditions rather than an adverse change in the environment, would impose a requirement beyond those stated in CEQA or its guidelines, and is thus prohibited.'" (South Orange County Wastewater Authority, supra, 196 Cal.App.4th at p. 1615.)
SDR's final argument is that the Project will cause a significant impact to the environment in that more vehicles will be parked on neighborhood streets, and further, that streets congested with parked cars could "affect emergency response vehicles entering and exi[]ting the Project and the surrounding area."
Case law holds that "CEQA considers a project's impact on parking of vehicles to be a physical impact that could constitute a significant effect on the environment." (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1051.) However, in this case, as we will explain, SDR has not pointed to any evidence in the record suggesting that the Project will significantly impact the parking of vehicles on public streets.
SDR identifies photographs in the record showing that, at times, numerous vehicles are parked on the street several blocks away from the Project site. Although this evidence does not establish that the same conditions exist closer to the Project site, where residents of the Project or their visitors might park, even if such conditions also existed near the Project, there is no basis for concluding that the Project would significantly add to any existing congestion. The Project provides at least two garage parking spaces for each residence and a driveway surface for parking. In addition, the private road that will be constructed as part of the Project provides for an eight-foot-wide paved parking easement on the west side of the road. In light of the fact that parking for several cars will be available at each residence plus additional parking will be available on the private road, SDR has identified no basis in the record to conclude that congested parking on surrounding public streets will be a problem created by the Project.
To the extent that SDR is arguing that any additional street parking caused by the Project will impede ingress and egress for emergency vehicles, that possibility was expressly considered and rejected by fire department authorities. The fire marshal testified at the City Council hearing that the private road planned for the Project was 32 feet in overall width, which afforded an adequate 24-foot-wide roadway to be used as a fire lane, even with the eight-foot-wide strip of parking on one side of the roadway, and the cul-de-sac was designed with sufficient room at the end for the fire engines to turn around. SDR cites no evidence to the contrary to show that emergency vehicles would not be able to access the area due to any increased parking on the streets.
The judgment of the trial court is reversed, and the trial court is directed to enter a new order denying the petition for writ of mandate.
McINTYRE, Acting P. J. and O'ROURKE, J., concurs.
