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Reproduced by California Resources Agency with the
permission of LexisNexis. Copyright 2007
LexisNexis, a division of Reed Elsevier Inc.
All rights reserved. No copyright
is claimed as to any portion of the original work prepared by a government
officer or employee as part of that person’s official duties. WOODWARD
PARK HOMEOWNERS ASSOCIATION,
INC., et al., Plaintiffs and Appellants, v. CITY OF FRESNO et al., Defendants
and Respondents; DeWAYNE ZINKIN, Real Party in Interest and Respondent. F049481
COURT
OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT 150
Cal. App. 4th 683;
58 Cal. Rptr. 3d 102; 2007 Cal. App. LEXIS 757 April
13, 2007, Filed NOTICE: As
Modified May 11, 2007. SUBSEQUENT HISTORY: Later proceeding at Woodward Park
Homeowners Association, Inc. v. City of Fresno (Zinkin), 2007 Cal. LEXIS
6754 (Cal., June 18, 2007) Time for Granting or Denying Review
Extended Woodward Park Homeowners Association, Inc. v. City of Fresno
(Zinkin), 2007 Cal. LEXIS 8139 (Cal., July 13, 2007) Review denied by, Request denied by Woodward
v. City of Fresno, 2007 Cal. LEXIS 8199 (Cal., July 25, 2007) PRIOR-HISTORY: Superior Court of Fresno County, No. 05
CECG00058, Wayne R. Ellison, Judge. Woodward Park Homeowners Assn., Inc. v. City of Fresno, 149 Cal.
App. 4th 892, 2007 Cal. App. LEXIS 544 (Cal. App. 5th Dist., 2007) COUNSEL: Law Offices of Richard L. Harriman and
Richard L. Harriman for Plaintiffs and Appellants. James C. Sanchez, City Attorney, David P.
Hale, Assistant City Attorney, Kathryn Phelan, Deputy City Attorney; Burke,
Williams & Sorensen, Geralyn L. Skapik, Amy E. Morgan and Stefanie G. Field
for Defendants and Respondents. Motschiedler, Michaelides & Wishon,
James A. McKelvey and C. William Brewer for Real Party in Interest and Respondent. JUDGES: Wiseman, Acting P. J., with Cornell and
Dawson, JJ., concurring. OPINION BY: Wiseman OPINION WISEMAN, Acting P. J.--This case
concerns the City of Fresno's approval of a new commercial development on
vacant land near Woodward Park in Fresno. Invoking the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.),
two local organizations asked the superior court to set aside the city's
approval. The court declined. We will reverse the superior court's decision. As
we will explain, the city's actions violated CEQA and it must do the environmental
review process over if it wants to approve the project. One of
CEQA's two major purposes is to require public agencies to adopt feasible
mitigation measures to lessen the environmental impacts of the projects they
approve. In this case, the project was expected to impact an already congested
freeway interchange at State Route 41 and Friant Road. The city calculated a freeway impact fee of
the kind frequently imposed on developments in other cities, but throughout
almost the entire CEQA review process, the city took the position that it need
not impose the fee or any other freeway mitigation measure. It took this
position based on a long-standing Fresno policy of approving projects despite
unmitigated freeway impacts, a policy apparently arising from the city's dissatisfaction
with information provided to it by Caltrans.
The policy is illegal because CEQA does not allow agencies to approve
projects after refusing to require feasible mitigation measures for significant
impacts. If the project went ahead
without any freeway traffic mitigation, the driving public would be left
"holding the financial bag." At the
last minute, during the city council meeting at which the project was
approved, the city decided to accept
Zinkin's offer to pay a small freeway- impact fee. The fee was legally inadequate; as we will
explain, the amount was not supported by sufficient evidence. CEQA's
other major purpose is to inform the public and decision makers of the
consequences of environmental decisions before those decisions are made. In
this case, the city's review process failed to inform the public because the
two environmental documents the city produced--an environmental impact report
and a statement of overriding considerations--were deeply flawed. An
environmental impact report, as its name
suggests, is meant to report the environmental impacts a project will have. In
this case, the environmental impact report usually measured the project's
impacts by comparing it to a massive hypothetical office park, instead
of comparing it to the vacant land that actually exists at the project site.
This hypothetical office park was a legally incorrect baseline which
resulted in a misleading report of the project's impacts. A
statement of overriding considerations gives a public agency's reasons for
approving a project--its overriding considerations--even though the project
will have significant environmental impacts that cannot be substantially lessened
by mitigation measures. In this case, the statement of overriding
considerations engaged in a serious misrepresentation. It claimed that the
proposed project would have economic benefits superior to those of the three
alternatives considered in the environmental impact report because those
alternatives "generally propose no development or development to a lesser
degree." In reality, the three alternatives in the report were as large
as or larger than the proposed project, and the record contained no reason
to think their economic benefits would be smaller. The real difference was that
the proposed project included a shopping center--which was a primary target of
many members of the public opposed to the project--while the alternatives had
no shopping center or a smaller shopping center, but more office space. The
statement of overriding considerations camouflaged this difference by
substituting the unsupported claim about economic superiority. The
city's environmental review process failed to satisfy either of CEQA's two main
purposes. We will not speculate about why this happened, but a dissenting
member of the city council observed at the meeting in which the project was
approved that "we're talking about issues that ... a couple of years ago
we wouldn't have even discussed like EIR's ... and a developer putting [freeway
traffic impact mitigation fee] money into ... Caltrans." If, as this
comment suggests, the city's culture of CEQA compliance is only now emerging,
it would be a disservice to the public if a project of this magnitude were to
go forward based upon a foundation that is so flawed. FACTUAL
AND PROCEDURAL HISTORIES Real
party in interest DeWayne Zinkin, doing business as Zinkin Development Company,
LLC (Zinkin), obtained the approval of respondent City of Fresno (the city) to
build a development on a 38.93-acre parcel located immediately to the east of
the intersection of North Friant Road and North Fresno Street, one long block
from the interchange between Friant Road and State Route 41. The approved
project consisted of 274,000 square feet of office space and a
203,000-square-foot retail shopping center. Zinkin's proposal also tentatively
included 20 apartments, but the approval was not conditioned on the inclusion
of any apartments in the final plan. The actual number of apartments was to be
determined later, when the developer would submit a site plan and apply for a
conditional use permit. As the city explains in its brief, "[t]he 20 units
mentioned in the application [are] just a 'place holder,' included as part of
the conceptual plan." The
city's approval of the project was comprised of several distinct acts. First,
the city certified an environmental impact report (EIR) and a statement of
overriding considerations pursuant to CEQA (Pub. Resources Code, § 21000 et
seq.). 1
Then a portion of the property previously zoned for office and
residential uses was rezoned to permit construction of a shopping center.
Finally, the city amended the Fresno General Plan and the Woodward Park
Community Plan to permit construction of a shopping center on a portion of the
property. The plans previously designated this portion for office development.
The approval was subject to a number of conditions in addition to the
mitigation measures set forth in the EIR, including approval of a master
conditional use permit and a site plan; exclusion of a supermarket (but allowance
of a large specialty grocery store); and
construction of improvements to the streets bordering the property. 1 Subsequent statutory references are to the
Public Resources Code unless indicated otherwise. Like
all EIR's, the EIR in this case evaluated the environmental impacts of the
proposed project by comparing the project's environmental effects with the
preexisting environmental baseline at the site without the project. According
to the Guidelines for the Implementation of the California Environmental
Quality Act (Cal. Code Regs., tit. 14, § 15000 et seq.; hereafter
Guidelines), the environmental baseline on the basis of which the environmental
impacts of the project are to be measured normally is the physical condition of
the project site at the time the notice of preparation of the EIR is published.
(Guidelines, § 15125, subd. (a).) In this case, the project site was
(and still is) a vacant lot. The EIR does not contain an explicit statement
of the baseline it used. In setting forth the project's impacts on air
pollution and traffic congestion (the main points at issue in the subsequent
litigation), however, the EIR compared the project's impacts with those of a
large-scale (more than 600,000 square feet) office and office-related retail
development that could be built consistently with the existing zoning and plan
designations. The traffic congestion study also examined area traffic without
any development on the site (i.e., the traffic presently existing), but the air
pollution study compared the proposed project's emissions only with the emissions
that would be associated with an office development allowed under existing
zoning, not a vacant lot. In its
air pollution discussion, the EIR noted that Fresno County is a nonattainment
area (i.e., an area in which regulatory thresholds are exceeded) for ozone and
10-micron particulate matter (referred to as PM10), and that any net increase
in these pollutants is considered significant. The EIR compared, on the one
hand, emissions of PM10 and ozone precursors (referred to as ROG and NOx)
associated with operating the office project allowable under existing zoning,
with, on the other hand, emissions of the same pollutants that would be associated
with operating the proposed project. It found that the proposed project
"generates slightly more emissions" than the chosen baseline. The EIR
then stated (1) that because the project is in a nonattainment area, certain
mitigation measures should be incorporated into the project; (2) that a
significant, unavoidable impact to NOx emissions would remain in spite of these
measures; and (3) that emissions associated with operating the project would
otherwise be insignificant with mitigation. The EIR also called for mitigation
measures to limit the emissions of PM10 associated with dust caused by the
actual construction of the project, measures it said would render the
construction impact insignificant. The EIR's traffic discussion included comments
on both surface streets and the nearby freeway, State Route 41, and its on- and
off-ramps on Friant Road. The discussion of surface streets includes tables
comparing, on a scale of A to F (F being the worst), existing traffic and
existing traffic plus project-generated traffic at several intersections and
road segments surrounding and adjoining the project site. It concluded that the
project would cause one street segment and two intersections to fall from
acceptable levels of service, defined as D or better, to E or F. The
discussion of surface streets also compared traffic at the surrounding street
segments and intersections with and without the project in 2025. It concluded
that, with or without the project, three street segments will operate at level
C or D in 2025, while the remaining eight segments will operate at level F.
Also, with or without the project, all nine intersections studied will operate
at unacceptable levels in 2025. As mitigation measures for surface streets,
the EIR called for the construction of a new lane on the project's side of
Friant Road, widening of the approaches to several intersections, synchronizing
of existing traffic signals, and installation of two new traffic signals.
Significant, unavoidable impacts to surface street traffic would remain after
mitigation. This is because achieving nonfailing levels of service would
require the addition of lanes to several of the surrounding streets, for which
"[r]ight-of-way costs would be too significant ... ." The
EIR's discussion of freeway traffic was brief but generated substantial
controversy. The final circulated draft of the EIR included an impact
mitigation fee figure in a table titled "SR 41 Project-Related Trip Impact
and Fair Share Estimate." This table shows projected peak-hour trips
generated by the project at several points in the interchange between State
Route 41 and Friant Road. It stated that the trip-generation figures were
estimated using the Council of Fresno County Governments' regional traffic
model. For each point in the interchange, the table showed a cost per trip.
These figures were supplied by Caltrans. The table then multiplied the cost per
trip by the number of trips for each point in the interchange and totaled the
results. It showed a total fair share estimate of $31,155. Having
calculated the $31,155 figure, the EIR then declined to require the developer
to pay it, stating: "It is noted that Caltrans did not provide a source
document or 'nexus study' for the cost per trip by improvement or segment along
SR 41 identified in [the table]. In the absence of such documentation by
Caltrans, such fees have not been required as mitigation or conditions of
approval by the City of Fresno." The
EIR went on to state that, because the proposed project would generate fewer
total peak-hour trips than a project allowable under existing zoning, "the
assessment of fees to address project-related impacts along SR 41 may not be
appropriate," even apart from the issue of Caltrans's failure to deliver
the desired information. The city "does not object," however, to the
developer paying the fee "voluntarily." After
the EIR was circulated in draft form, Caltrans submitted a comment letter
responding to these remarks. It stated that the city had all the information it
needed and that, in any event, as the lead agency, the city had a legal duty to
require mitigation of all the significant impacts it identified. It also argued
that, because no freeway traffic impact mitigation was required when the
existing zoning was put in place in 1990, a comparison between impacts from a
project that could be built under that
zoning and the proposed project was irrelevant. Caltrans also disputed the amount of the fee.
It stated that, among other, smaller deficiencies, the EIR failed to reflect
157 project-generated evening peak-hour trips traveling on a proposed southbound
auxiliary lane between the Friant and Herndon exits. With these, the fee amount
would be $445,817. The letter further stated that in 1998, Zinkin agreed to pay
a voluntary impact mitigation fee of $37,500 for another project, but never
paid it. In its
responses to public comments in the final EIR, the city made some adjustments,
increasing its fee calculation to $43,897. It disputed the bulk of the
difference between its and Caltrans's figures, saying that, although the
project would generate 157 trips in the southbound auxiliary lane between
Friant and Herndon, project traffic would use only part of that lane.
Caltrans did not supply a figure or methodology for determining this partial
use, so the city set the fee for it at zero. The city still was not
requiring the developer to pay any amount and recited a variety of reasons for
its policy of allowing impacts of this kind to stand unmitigated. Regarding the
voluntary $37,500 fee in the 1998 case, the city stated that Zinkin never paid
this amount because Caltrans "verbally rejected" it. Caltrans
replied, accepting the assertion that project traffic would not use all of the
auxiliary lane. It reduced its fee calculation to $306,558. It also responded
to the city's request that it explain its methodology by supplying the worksheets
it used in making its calculations. Arguing against the city's stated policy of
refusing to demand that developers pay freeway traffic mitigation fees,
Caltrans observed that "it is common practice throughout the State of California
for a Lead Agency to require mitigation for State Highways as a condition of
project approval ... ." It denied that it ever rejected the $37,500 for
the earlier project and stated that it has requested this payment multiple
times without response by the city or applicant.2 2 After this court originally issued its
opinion in this case, the city and Zinkin requested that we take judicial
notice of an agreement between Caltrans and Zinkin executed May 30, 2006,
relating to the earlier project. The request is granted. This agreement describes Zinkin's 1998 offer
and states that Caltrans accepted it in 2000, contradicting the city's
assertion during the CEQA review process in this case that Caltrans had rejected
the offer. The agreement states that Zinkin and Caltrans then
"negotiated" a payment of $27,000. In his request for judicial notice
and accompanying papers, Zinkin does not deny that the original offer and
acceptance were for $37,500 and does not claim that the agreement for that
amount was ever honored. At the meeting in which the city council
approved the project, Zinkin's attorney proposed to have the city impose a fee
of $45,000 "in a spirit of compromise" in light of the fact that
"expert opinion as reflected in the EIR" ranges from "$0 -
$306,000." The attorney claimed that "there is no legitimate basis
for imposing that," but "we volunteered to have that imposed."
Later in the meeting, a council member moved to approve the project, mentioning
the $45,000 payment in his motion. The city attorney asked the council for
"clarification" of whether "[t]he $45,000 voluntary mitigation
fee" would be added to the resolution certifying the final EIR. She never
received clarification during the meeting. A version of the proposal (for
$43,897) did, however, appear in the council's resolution certifying the EIR.
We will set forth the details of the adopted version later in this opinion. 3 3 After this court originally issued its
opinion in this case, the city and Zinkin filed a request for rehearing or
modification, supplying for the first time a citation to the administrative
record supporting their claim that the city council's resolution certifying the
EIR included a freeway-related measure.
The city and Zinkin claimed in their original briefing that the city's
approval included this measure, but their record citations did not bear out the
claim. They claimed this again in their
supplemental briefing after this court's briefing letter stated that there
appeared to be no freeway traffic impact mitigation measure (and after the
court granted an extension of time to a date stipulated to by all parties), but
again their record citations failed to substantiate the claim. The court specifically asked them for a
citation at oral argument, but again they failed to supply one that bore out
the claim and failed to request leave to file a letter brief supplying
one. Finally, after employing new
appellate counsel, they produced the correct citation (pages 2022 and 2567 of
the administrative record) in their request for rehearing or modification. They also asserted that, previously, the
court did not give them a sufficient opportunity to address this issue. The procedural history just recited refutes
this assertion. Needless to say, it is
counsel's responsibility to supply correct record citations in support of all
factual assertions. The opportunities
for doing so were more than adequate. We
have, however, modified the opinion in the interest of accuracy to reflect the
facts belatedly brought to our attention. The EIR discussed another set of impacts
under the heading "Land Use and Planning." This discussion concerned
the inconsistency of the project with the city's general plan and the Woodward
Park Community Plan. The EIR explained that the plans designated the site
for office development, not for offices and a shopping center, but that the proposed
plan amendment would change this designation and eliminate the discrepancy. The
EIR also stated that the Woodward Park Community Plan includes a policy
limiting the amount of retail development in the Woodward Park
neighborhood according to a formula tied to population growth. The shopping
center component of the project would exceed these limits. The EIR asserted,
however, that the city's general plan had an overriding provision that included
the project site in a classification called the Woodward Park Activity
Center, which was exempt from the Community Plan's retail development limitations.
The EIR characterized the project's inconsistency with the Community Plan as a
potentially significant impact, but concluded that no mitigation was required
because of inclusion of the project site in the activity center. Additional
impacts on land use and planning, including exceeding an existing single-story
limitation on part of the property and impairing trail access, were found to be
insignificant with mitigation measures. The
project's other impacts were discussed under the headings of geology and soils,
biotic resources, noise, drainage, public facilities and services, aesthetics,
and cultural resources. None of these are at issue in this appeal. About each of them, the EIR either found the
project's impacts insignificant or required mitigation measures that would
render them insignificant. There were two exceptions. First, the site would
look different after development and, even with mitigation measures, this would
be a significant, unavoidable aesthetic impact. Second, the project would create
light and glare. The EIR described this as a potentially significant impact but
required no mitigation. Like
all EIR's, the EIR in this case discussed possible alternatives to the project.
CEQA requires discussion of project alternatives in order to provide decision
makers and the public with a reasonable picture of the range of feasible
choices with lesser environmental impacts. (Guidelines, § 15126.6, subds.
(a)-(d).) Every EIR must include a "no project alternative" in
order to "allow decisionmakers to compare the impacts of approving the
proposed project with the impacts of not approving the proposed project."
(Guidelines, § 15126.6, subd. (e)(1).)
The no-project alternative must discuss "existing conditions"
without the project but must also examine "what would be reasonably
expected to occur in the foreseeable future if the project were not approved
... ." (Guidelines, § 15126.6, subd. (e)(2).) In
this case, the EIR discussed three alternatives to the proposed project. Under
the heading "No Project Alternative," the last draft EIR stated that
"[t]he site would remain vacant but could be developed with offices as
allowed by current planning and zoning designations." This suggested that
the no-project alternative might have been either a vacant lot or the maximum
office construction allowable under existing zoning. Apparently in response to
public comments, the final EIR removed this ambiguity, saying "[t]he No
Project alternative is considered office development according to existing
zoning." It was already clear, however, from the final draft EIR's
analysis that no comparison of the project with a vacant lot was ever intended.
It says the no-project alternative "has the potential to slightly
reduce" "impacts to resources including traffic, air quality, and
noise" relative to the proposed project. The no-project alternative might
"generate about 1/2 the daily trips" and thus would "reduce
impacts from traffic," while air pollution impacts would be "reduced
slightly"; "[i]mpacts to geology and soils would be similar in that
100% site development would occur," and other impacts would also be
similar. In all this, it is obvious that the no-project discussion compares the
proposed project's impacts only with those of maximum office construction under
existing zoning, not with the existing physical situation. Although
the EIR's section on alternatives did not say how large the maximum project
allowable under existing zoning would be, other parts of the EIR did. Under
existing zoning, an office park of 694,000 square feet could be built,
consisting of 548,000 square feet of office space and 146,000 square feet of
office-related retail space. The proposed project is 477,000 square feet, consisting of 274,000 square
feet of office space, 203,000 square feet of community commercial (i.e.,
shopping center) space, plus 20 (or more or fewer) apartments, as we have said. The
second alternative was called "Planned Office Development." This was
an office development of 652,000 square feet, consisting of 489,000 square feet
of office space and 163,000 square feet of office-related retail space, plus
135 apartments. Overall trip generation would be less than with the proposed
project by about 3,000 trips per day, but peak-hour traffic would be greater.
Air pollution impacts would be less because of the smaller traffic impacts.
Demands on public services would be greater because of the larger number of
apartments. Other impacts would be about the same. The
third alterative was called "Reduced Intensity Alternative." The
EIR's original description of this alternative obscured its actual scope. It
stated that "[f]or the southern half of the property, it is estimated that
commercial [i.e., shopping center] uses would occupy 88,000 square feet, and
office uses 140,000 square feet." The description said "[t]he balance
of the project site would be developed with increased office uses," but
did not say what quantity of development that would involve. In the final EIR's
responses to comment letters, it was made clear that the Reduced Intensity
Alternative has a total of 414,000 square feet of office space. The total
square footage of this alternative is thus 502,000. The
EIR concluded that the Reduced Intensity Alternative would generate 2,100 fewer
trips than the proposed project. It also
stated, however, that peak-hour traffic could be greater. Air pollution impacts
would be less because of the smaller traffic impacts. Other impacts would be
similar to those of the proposed project. After
describing the three alternatives and comparing them with the proposed project,
the EIR compared the alternatives with one another. Although the three
alternatives were similar to each other in that they all would cause somewhat
less air pollution, somewhat less traffic congestion except at peak hours, and
minimal differences with respect to other impacts when compared with the
proposed project, the EIR found that the Planned Office Development was
"the environmentally superior alternative for the project site." That
alternative was, however, "not feasible from the applicant's standpoint"
because it lacked a shopping center. Office-related retail space was included,
but under the limitations of that type of retail, "it would be virtually
impossible to develop the planned office development alternative with the
maximum allocation of 25% of the site in commercial uses." The Reduced
Intensity Alternative did include a shopping center, but this alternative was
also "not feasible from the developer's standpoint" because it
would not include a supermarket.
"Without the supermarket, leasing becomes difficult, and revenues to the
developer are generally not sufficient to support enhanced architecture and other
quality commercial features." Further, shopping centers in Fresno without
supermarkets "are usually smaller strip centers that struggle with
vacancies and have aesthetic, landscaping, and signage issues." The
proposed project did originally include a supermarket, but the city refused to
approve that component and prohibited a supermarket in the resolutions
approving the project. City staff concluded that the supermarket would generate
too much peak-hour traffic. This did not cause the developer to abandon the
project as infeasible. The
proposed project and the three alternatives set forth in the EIR are summarized
in the following table: ________________________________________________________________________________
________________________________________________________________________________ ________________________________________________________________________________
________________________________________________________________________________ Due to
the fact that the city decided to approve the project even though the EIR found
significant, unavoidable air and traffic impacts that would not be mitigated to
an insignificant level, a statement of overriding considerations was required.
(§ 21081, subd. (b).) This is a
statement in writing, supported by substantial evidence in the record, of
"specific economic, legal, social, technological, or other benefits"
of the proposed project that "outweigh the unavoidable adverse
environmental effects ... ." (Guidelines, § 15093, subd. (a).)
Notes in the Guidelines describe this as a "balancing statement" setting
forth the agency's "views on the ultimate balancing of the merits of
approving the project despite the environmental damage." (Guidelines,
discussion foll. § 15093.) The
statement of overriding considerations found that the project was justified
despite the significant, unavoidable impacts because "[t]he other
alternatives would offer a lesser variety of employment opportunities,
less available services for the
community and less available housing." It uses other formulations to make
the same points: "The benefits of providing a mixed use development with a
diverse variety of office uses together with commercial goods and services and
residential uses within a given neighborhood would be reduced with any of the
proposed alternatives"; "[t]he proposed mixed use project is superior
to the alternatives which would propose less intense projects with a lesser
range of employment opportunities within close proximity to the surrounding
residential community." These asserted advantages of the proposed project
may be summarized as follows: (i) it will generate more economic activity,
including creation of a variety of jobs, than the alternatives, and (ii) it
will serve the goal of providing mixed uses better than the alternatives. The
statement of overriding considerations found that "the benefits identified
... are each one, in and of themselves, sufficient to make a determination that
the adverse environmental effects are acceptable." The
claimed benefits of the proposed project are based in large measure on the
assertions that the alternatives considered in the EIR "generally propose
no development or development to a lesser degree" and that under the
no-project alternative, "the project site would remain vacant." In
other words, at least with respect to the amount (as opposed to the variety or
mixture) of economic activity the project would promote, the statement's
finding is that the proposed project has greater benefits than the alternatives
because it is larger or more intensive. The
assertion that the proposed project was larger or more intensive than the
alternatives was not consistent with the EIR's description of those
alternatives. As we have just seen, the alternatives considered in the EIR did
not "generally propose no development or development to a lesser
degree" and the no-project alternative described in the EIR was not one in
which "the project site would remain vacant." The no-project
alternative was more than 200,000 square feet larger than the office and
commercial part of the proposed project. Unless the 20 apartments would
comprise a whopping 10,000 square feet each--four to five times the size of a
typical detached house--the no-project alternative was actually a more
intensive development than the proposed project. The record contains no
information about the proposed size of the apartments, which are, as the city
says, only a place holder; the actual number could be zero. The
Planned Office Development was also a larger development. It contemplated
175,000 more square feet of commercial and office development and 115 more
apartments than the proposed project. The so-called Reduced Intensity
Alternative was about as large as the proposed project. It included no apartments, but its office and shopping
center combined were larger than the
commercial portions of the proposed project by 25,000 square feet (502,000
versus 477,000). The
real difference between the proposed project and the alternatives described in the
EIR was that the alternatives had office-related retail instead of a shopping
center or had a smaller shopping center. The statement of overriding considerations
contained no discussion of why a large office development with office-related
retail space should deliver a smaller quantity of economic benefits than a
smaller office development with a shopping center. Members
of the public commented extensively on the EIR before it was certified.
Numerous comment letters and extensive public comments at the city council
meeting and the planning commission meeting are included in the administrative
record. The comments were detailed and covered a wide variety of topics,
including air pollution; traffic congestion (together with freeway traffic
impact mitigation fees); the appropriate mix of land uses; whether a vacant lot
or the maximum project buildable under existing zoning was the appropriate
basis of comparison for determining the project's environmental impacts; and
whether the EIR's consideration of project alternatives was sufficient. It does
not appear that the statement of overriding considerations was made available
to the public before the city council meeting at which approval was granted
(the document's header reads "City Council Hearing December 7, 2004,"
the date of the meeting, and no version of it was attached to earlier drafts of
the EIR in the record), but Woodward Park's counsel mentioned it orally
at the meeting and it was a subject of critical discussion by one of the
council's members during the meeting. A city staff report presented to the
planning commission and city council also raised a wide variety of issues. After
the city approved the project, appellants Woodward Park Homeowners
Association, Inc., and Valley Advocates (collectively, Woodward Park)
filed a petition for a writ of mandate in superior court, asking the court to
reverse the city's action. The petition named the city and city council as
defendants and Zinkin as a real party in interest. It also named Caltrans and
the San Joaquin Valley Air Pollution Control District as real parties in
interest, stating that they were responsible agencies. The
petition alleged five causes of action. The first was "Failure to Require
Feasible Mitigation for Significant Cumulative Traffic Impacts" in
violation of CEQA. This cause of action referred to the city's refusal to impose
the impact mitigation fee proposed by Caltrans for the project's burden on the
interchange between State Route 41 and Friant Road. It alleged that the
city has "persistently and
obdurately ... refused to comply with the mandate of CEQA that significant
adverse effects of ... projects shall be ... mitigated where ...
feasible." The
second cause of action alleged "Inadequate Analysis of Cumulative Impacts
to Air Quality" in violation of CEQA. It stated that the city "failed
to require a quantitative analysis of what beneficial impacts the mitigation
measures requested by Caltrans would have caused in the vicinity," and
"failed to provide a quantitative study or analysis of the potentially
significant adverse impacts to public health in the" area. The
third cause of action alleged another CEQA violation and was headed
"Inadequate Analysis of Project Alternatives; Failure to Require the Environmentally
Superior Alternative." It asserted that the city failed to "make a
good faith effort" in its
consideration of alternatives and should have considered and approved "a
true 'mixed use' land plan with substantially more residential dwelling units ...
." The
fourth cause of action alleged that, by approving the project and amending the
city's general plan, the city rendered the general plan internally inconsistent
and inconsistent with the Woodward Park Community Plan and thereby
violated Government Code section 65300.5. It asserted that the plans
contemplated 20 to 50 percent housing in new development projects in the area
and that the proposed project did not include nearly that amount. The
fifth cause of action, "Improper Procedure Used to Adopt Statement of
Overriding Considerations," alleged an additional CEQA violation. It
asserted that the statement of overriding considerations was "not supported
by substantial credible evidence in the record"; "failed to utilize
the proper 'weighing and balancing' procedure ... in that there is no
quantification of economic costs associated with" air and traffic impacts;
and proceeded "without requiring the mitigation measures demanded by
Caltrans," "without requiring ... Zinkin to provide adequate
mitigation for the cumulative traffic impacts caused by the other projects
developed by him in the Friant Road expressway corridor," and
"without supporting the alleged 'cost-benefit' analysis with quantified
and credible substantial evidence." Before
the trial court ruled on the petition, Woodward Park voluntarily
dismissed Caltrans as a party. It also "waive[d]" its "claim in
this action, based upon inadequate mitigation for the future ramp improvements
at State Highway 41 and Friant Road, as alleged in the First Cause of Action
... ." In its ruling, the trial court first stated
that Woodward Park had withdrawn its first cause of action. Although the
fifth cause of action also referred to traffic impacts, the court interpreted
the withdrawal of the first as "waiv[ing] any claims based on inadequate
mitigation of traffic impacts relating to the approved project." On the
second cause of action (relating to air impacts), the court concluded that the
EIR's analysis was adequate. It found that the EIR examined the region's air
pollution conditions and the pertinent regulatory standards; "discusse[d] ... and analyze[d] the
pollutants likely to be created by the project"; considered the project's
cumulative impact on regional air quality; "acknowledge[d] the known
connection between many of the pollutants likely to be created by the project,
and serious health consequences, including the connection between: ozone
emissions and impaired respiratory function, PM10 particulates and lung damage,
carbon monoxide and cardiovascular disease, and nitrogen dioxide and its
adverse effects on human respiratory and immune systems." The court noted
that "[t]he EIR conclude[d] that pollutants created by the project will
not exceed regional state and federal emissions standards, but acknowledge[d]
that the cumulative impact on regional air quality is significant and largely
unavoidable. " This was adequate, the court ruled: "Whatever else
might have been said about the health effects of reduced air quality, the EIR
provides adequate notice to the lead agency, other public agencies and the
general public of the health consequences which may result from adding more pollutants
to a nonattainment basin." On the
third cause of action (inadequate consideration of project alternatives), the court found that the EIR evaluated
reasonable alternatives and the city had no obligation to consider an
alternative with more housing because there was no evidence that more housing
would reduce any environmental impacts. Woodward Park's "conclusion
that an alternative project with a greater number of residential units than
that approved could substantially lessen any such environmental effects is
wholly without support in the administrative record." Ruling
against Woodward Park on its fourth cause of action (general plan
inconsistency), the court observed that the reference in the general plan to 20
to 50 percent housing in mixed-use developments is an advisory guideline, not a
binding requirement. The 20-to-50-percent figure is set forth in a model
ordinance included in a document called "Landscape of Choice--Principles
& Strategies," which in turn was adopted as an exhibit to the general
plan. Policy C-8-b of the general plan "encourages the use of that Model
Ordinance in the development of mixed use projects," but "makes clear
that the Ordinance itself is only a guide for such development." Finally, the court ruled against Woodward
Park on its fifth cause of action (inadequate analysis in statement of
overriding considerations) on the ground that statements of overriding
considerations are not required to be quantitative in nature. Often, it stated,
adequate overriding considerations "are generalized reasons for approving
a project, such as creating more jobs, generating taxes and the like."
CEQA requires that an agency "weigh and balance the economic and other
benefits of the project against its environmental risks," but demands
"no cost-benefit analysis" and does not compel an agency "to
quantify the adverse environmental effects of a project, in terms of cost ...
." According to the court, the statement "[set] forth the City's
findings as to the significant and unavoidable effects of the project,
including the cumulative effects on air quality in the Valley, and the City's
determination that the project was acceptable, in spite of those unavoidable
effects, because of the economic and other benefits of the project." This
determination was supported by substantial evidence, the court ruled, so the
statement was adequate. Having rejected all of Woodward Park's claims,
the court denied the petition. In its
opening brief on appeal, Woodward Park again narrowed the issues,
limiting its contentions to its second (air impacts), fourth (general plan
inconsistency), and fifth (analysis in statement of overriding considerations)
causes of action. In its discussion of air impacts, the brief argues that the
EIR failed "to analyze adequately the cumulative impacts to air
quality," and more specifically that it did not "correlate the
acknowledged adverse impacts to air quality to resultant adverse health effects
... ." Regarding plan consistency, Woodward Park contends that the
20-to-50-percent-housing reference in documents annexed to the general plan is
a binding rule, not an advisory guideline. The brief's discussion of the
statement of overriding considerations reiterates both the general contentions
that the statement lacked sufficient " 'weighing and balancing' " and
was unsupported by substantial evidence and the more specific claim that the
statement lacked "quantification" of costs arising from traffic congestion
and air-pollution-induced health impacts. The city and Zinkin, in separate
briefs, undertook to rebut these contentions. On the day Woodward Park's
reply brief was due, its counsel informed the clerk's office that he would be
filing the brief as soon as he could. The reply brief was never filed. Subsequently,
we issued a briefing letter, asking the parties to submit supplemental briefs
addressing five issues: (A) By measuring the project's impacts against the
impacts of a large office park allowable under existing zoning, rather
than a vacant lot, did the EIR choose an
environmental baseline that was incorrect as a matter of law? (B) By
defining the no-project alternative as a large office park allowable
under existing zoning, rather than a vacant lot, did the EIR define the
no-project alternative incorrectly as a matter of law? (C) When the statement
of overriding considerations based its
finding of overriding economic benefits on a misdescription of the
project alternatives considered in the EIR, did the statement fatally
compromise its integrity as an informational document and were its findings
unsupported by substantial evidence? (D) Was the city's refusal 4 to require feasible mitigation measures
for acknowledged freeway traffic impacts erroneous as a matter of law, and is
the error cognizable under the fifth cause of action even though the first was
withdrawn? (E) Did Woodward Park fail to exhaust administrative remedies
with respect to the foregoing issues or fail to take action in the trial court
to preserve them for appeal? Woodward Park, the city, and Zinkin
submitted supplemental briefs addressing these issues. 4 As noted in footnote 3 above, the parties supplied
no citation to the record showing that any freeway-related measure was included
in the city council's resolution certifying the EIR until after this court
filed its original opinion in this case.
DISCUSSION Standards of review If a
CEQA petition challenges agency action that is quasi-adjudicatory in character,
the trial court's role is only to determine whether the action is supported by
substantial evidence in the record. (§ 21168.) If the agency action was
quasi-legislative in character, the trial court reviews the action for abuse of
discretion. The agency abuses its discretion if it does not proceed in the
manner required by law or if the decision is not supported by substantial
evidence. (§ 21168.5.) " 'Substantial evidence' " is defined
in the Guidelines as "enough relevant information and reasonable inferences
from this information that a fair argument can be made to support a conclusion,
even though other conclusions might also be reached." (Guidelines, §
15384, subd. (a).) The formulations in sections 21168 and 21168.5
embody essentially the same standard of review. Both require the trial court to
determine whether the agency acted in a manner contrary to law and whether its
determinations were supported by substantial evidence, and neither permits the
court to make its own factual findings. (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5 [253 Cal.
Rptr. 426, 764 P.2d 278]; Burbank-Glendale-Pasadena Airport Authority v.
Hensler (1991) 233 Cal. App. 3d 577, 589-590 [284 Cal. Rptr. 498].) The
Court of Appeal reviews the trial court's decision de novo, applying the same
standards to the agency's action as the trial court applies. (Neighbors of
Cavitt Ranch v. County of Placer (2003) 106 Cal.App.4th 1092, 1100 [131 Cal.
Rptr. 2d 379].) A similarly deferential standard is applicable
to Woodward Park's claim under Government Code section 65300.5.
The city's determination that the project was consistent with the general plan
and the Woodward Park Community Plan can be overturned by a reviewing
court only if the city abused its discretion. It abused its discretion only if
its determination was not based on findings or the findings were not based on
substantial evidence. (Families Unafraid to Uphold Rural etc. County v.
Board of Supervisors (1998) 62 Cal.App.4th 1332, 1338 [74 Cal. Rptr. 2d 1].) I. Foundational defects in the
environmental documents The
city approved two environmental documents, an EIR and a statement of overriding
considerations. The EIR has often been called the heart of CEQA. (Laurel
Heights Improvement Assn. v. Regents of University of California (1993) 6
Cal.4th 1112, 1123 [26 Cal. Rptr. 2d 231, 864 P.2d 502].) It is an informational document whose purpose
is to inform the public and decision makers of the environmental consequences
of agency decisions before they are made. (Ibid.) Beyond this
informational purpose, an EIR can lead to affirmative legal obligations for
agencies: They are required to "mitigate or avoid the significant effects
on the environment" identified in an EIR "whenever it is feasible to
do so" if they approve projects that have significant effects. (§
21002.1, subd. (b).) Agencies are permitted to approve projects with
significant environmental impacts, even if there are no feasible mitigation
measures, if they find that overriding considerations justify the approval.
Those considerations must be set forth in a statement of overriding considerations
and supported by substantial evidence. (§ 21081; Guidelines, § 15093.)
Both documents were fundamentally defective in this case and failed to satisfy
legal requirements. A. Environmental baseline 1. Applicable law The
Guidelines state that an EIR must contain a description of the environmental
setting of the project and that this description must describe the actual
physical conditions of the project site when the notice of preparation of the
EIR is published. Further, and crucially in this case, the existing physical
conditions "will normally constitute the baseline physical conditions by
which a lead agency determines whether an impact is significant."
(Guidelines, § 15125, subd. (a).) Also, "[w]here a proposed project
is compared with an adopted plan, the analysis shall examine the existing physical
conditions at the time the notice of preparation is published ... as well as
the potential future conditions
discussed in the plan." (Guidelines, § 15125, subd. (e).) These
requirements protect the fundamental essence of an EIR, its evaluation of a
project's environmental impacts. They protect this, in cases where the proposed
project is actual construction, by ensuring that the evaluation of impacts
normally will do what common sense says it should do and what the EIR's most
important audience, the public, will naturally assume it does: compare what
will happen if the project is built with what will happen if the site is left
alone. To put
the point a bit differently: If an EIR for a construction project on vacant
land uses something other than vacant land as its baseline, the EIR will report
only a portion of the impacts the project will have. For instance, if a hypothetical
project half the size of the proposed project is used as a baseline, the EIR
will report only half the project's impact. The EIR would fail to inform the
public of the other half. It would also necessarily lack consideration of
mitigation measures for the omitted portion of the project's impact. 2. Analysis: actual vacant land versus
hypothetical office park In
this case, the EIR acknowledged that the project site was presently a vacant
lot. It then went on in many instances, however, to evaluate environmental
impacts by comparing the project's impacts with those of the maximum buildable
development under existing zoning and plan designations. The question presented
is whether this approach satisfied the requirement that the EIR evaluate
impacts by comparing the project to
existing physical conditions. The
city and Zinkin contend that the EIR conformed to the Guidelines because it
evaluated the proposed project's impacts in relation to both a vacant
lot and a large development permissible under existing zoning and plan
designations. If the EIR actually did this, its treatment of the baseline would
be legally correct. Where, as here, the agency's action includes alteration of
a previously adopted plan, the EIR (normally) still must compare the project
with "existing physical conditions" but should also compare it with
"potential future conditions discussed in the plan." (Guidelines, §
15125, subd. (e).) The second comparison is important because, among other
reasons, it enables the public and decision makers to identify possible
inconsistencies between the proposed project and the previously adopted plan.
(See discussion foll. Guidelines, § 15125.) This
"two-baselines approach" only works if the EIR actually carries out
both comparisons. That did not happen in this case. Instead, the EIR had a
dominant theme of comparing the proposed project with buildout under existing zoning, combined with a scattered,
partial discussion of some of the project's impacts relative to vacant land. As we
have said, the EIR's traffic discussion did include a comparison of existing
traffic with existing traffic plus project-generated traffic. It contained a
description of existing air pollution. It also referenced a vacant lot as the
point of comparison in describing some of the project's minor impacts. For
example, it stated that the project will have an unavoidable aesthetic impact
because it will look different from a vacant lot, and its discussion of impacts
on biotic resources implicitly compared the project with a vacant lot by
considering the need to remove and relocate certain species, if found. Despite
this, the EIR's bottom-line conclusions on the major impacts at issue
emphasized the marginally increased impacts of the proposed project over
buildout under existing zoning. The section of the air pollution discussion
labeled "Impacts" set forth tables comparing air pollution that would
be caused by buildout under existing zoning with pollution that would be caused
by the proposed project. It then says the operation of the project would
produce "slightly" more air pollution than the large office park
allowable under existing zoning, without saying whether the increase is more
than slight relative to the vacant land. In the traffic discussion, a repeated
emphasis is that by some measures the proposed project would generate less
traffic than a project buildable under existing zoning and plan designations.
In several places, it is stated that, while existing designations for the
project site included a cap of 12,400 trips per day, the proposed project was
projected to generate only 12,297 trips per day, so building the project would
reduce traffic by that measure. Tellingly, however, the EIR stated in another
section that the no-project alternative--which the EIR also defined as a large
office park buildable under existing zoning--might generate "about
1/2 the daily trips" the project would generate. This means that, although
the proposed project's trip generation will come in under the 12,400-trip cap,
a development allowed under existing zoning would come in well under
that cap. In effect, the EIR used the trip cap as a third baseline to
make the project's impacts look even smaller than the
development-under-existing-zoning baseline did. Elsewhere, the EIR found that
the project would generate less peak-hour traffic than a project buildable
under existing zoning. In any event, this
thinking is obviously not based on a comparison of the proposed project
with a vacant lot. The
upshot of all this is that the EIR never presented a clear or a complete
description of the project's impacts compared with the effects of leaving the
land in its existing state. Readers who have been told that the air pollution impact is slight and that the traffic
generated will be less than the given benchmark should not have to stop and
puzzle it out that these conclusions are based on a comparison with a large
office park that is not, in fact, there. Those who did puzzle it out
were still left wondering whether the impacts would be slight or major in relation
to vacant land. Due to
these problems, the EIR in this case is closely analogous to two EIR's the
Court of Appeal found to be legally inadequate in Environmental Planning
& Information Council v. County of El Dorado (1982) 131 Cal. App. 3d 350
[182 Cal. Rptr. 317] (EPIC). One area of a county had 418 residents
and another had 3,800. (Id. at p. 358.) The existing county general plan
established a population-holding capacity for the first area of 70,400 and for
the second of 63,600. A proposed plan amendment would have reduced the capacity
figures to 5,800 and 22,400. The EIR's described the proposed plan amendment's
impacts by saying that the drastic reductions in the population-capacity
figures meant the adoption of the amendment would have no adverse environmental
impacts. (Id. at pp. 357-358.) The
appellate court found the EIR's deficient because they should have compared the
plan amendment to the existing state of the physical environment, not to the
existing plan. "CEQA nowhere calls for evaluation of the impacts of a
proposed project on an existing general plan; it concerns itself with the
impacts of the project on the environment, defined as the existing physical
conditions in the affected area. The legislation evinces no interest in the
effects of proposed general plan amendments on an existing general plan, but
instead has clearly expressed concern with the effects of projects on the
actual environment upon which the proposal will operate." (EPIC, supra,
131 Cal. App. 3d at p. 354.) Since the EIR's at issue compared the
amendments with hypothetical conditions contemplated by the existing plan and
not with actual existing physical conditions, those EIR's "can only
mislead the public as to the reality of the impacts and subvert full
consideration of the actual environmental impacts which would result." (Id.
at p. 358.) A point of similarity between EPIC and the present case
is that there, as here, it was "true that the [EIR's] do discuss certain
physical impacts upon the existing environment, but such information must be
painstakingly ferreted out of the [EIR's]." (Id. at p. 357.) A
number of other cases reach similar conclusions. (See, e.g., City of
Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal. App. 3d 229, 246 [227
Cal. Rptr. 899] [agency must consider impacts of rezoning on existing
physical environment; comparison of project possible under old zoning with
project possible under proposed new zoning "bears no relation to real
conditions on the ground"].) As a popular CEQA treatise describes them, EPIC
and similar cases "hold that, in assessing the impacts of a project
proposed for an undeveloped piece of
property, agencies should compare project impacts against the existing
environment, rather than some hypothetical, impacted future environment
that might occur without the project under existing general plan and/or zoning
designations." (Remy et al., Guide to the Cal. Environmental Quality Act (10th ed. 1999) p. 165 (hereafter
Remy).) As in EPIC, the EIR here was legally inadequate as an
informational document because it failed to analyze consistently and coherently
the impacts of the project relative to leaving the land in its existing
physical condition. The
city makes an alternative argument that, even if it did not sufficiently
analyze the project's impacts relative to existing physical conditions, it had
discretion not to do so. The proposition that an agency sometimes can choose a
baseline other than existing physical conditions is implicit in the Guideline's
statement that existing physical conditions are "normally" the
baseline. Even so, in this case, neither the city nor Zinkin has advanced any
reason why the normal approach was not required here. If EPIC represents
the normal situation--and there is every reason to think it does, since it is
cited as authority for the Guideline in question (see Discussion following
Guidelines, § 15125)--we would need some persuasive reason not to apply EPIC.
The city says EPIC is "inapt" because here the EIR did contain
some references to existing conditions. As we have just seen, the EIR's in EPIC
did also, but that was not enough where the main thrust was a comparison of the
proposed project with hypothetical conditions that were allowed under the existing
general plan. The
city cites Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270 [119 Cal.
Rptr. 2d 402], but that case does not present an analogous situation.
There, the question was whether an agency that did use existing physical
conditions as the environmental baseline in an EIR was required not to
do so because those conditions resulted from previous illegal construction. The
Court of Appeal held that the agency acted within its discretion in using
existing physical conditions as the baseline. (Id. at p. 1278.) Situations
appearing in the case law that were treated as not "normal" are not
comparable to the present case. (Black Property Owners Assn. v. City of
Berkeley (1994) 22 Cal.App.4th 974, 985-986 [28 Cal.Rptr.2d 305] [EIR
reviewing update of housing element of general plan, not involving approval of
any specific construction, could take preexisting policies readopted without
change as part of baseline]; Benton v. Board of Supervisors (1991) 226 Cal.
App. 3d 1467, 1477, fn. 10 [277 Cal. Rptr. 481] [supplemental EIR prepared
because of changes in previously reviewed and approved project could use
project as approved in original EIR as environmental baseline].) There was no
reason here why the usual rule requiring the baseline to be the existing physical
environment would not apply. The city and Zinkin finally claim that the EIR
did not have to use existing physical conditions as the baseline because
previous environmental review of the property for other purposes "analyzed
impacts to the site 'from the dirt up.' " Previous review mentioned by the
city and Zinkin includes the 1990 rezoning and plan amendments and an EIR prepared
for the 1989 Woodward Park Community Plan. We do not see how environmental
review occurring years before the present project was conceived affects the
question of what the baseline should have been in the EIR for the present
project. The suggestion appears to be that members of the public could (1)
retrieve the environmental documents prepared on those earlier occasions, (2)
locate analyses that evaluated impacts by comparing the vacant land with whatever
plans or projects those earlier processes approved, and then (3) add those
impacts to the impacts identified in the present EIR. The sum of the earlier
dentified impacts and those identified
now would be the actual impacts of the present project based on a comparison
with vacant land. Even assuming this would have been possible, an agency cannot
satisfy its CEQA obligations by imposing a burden of that kind on the public. The
notion that it could is unsupported by authority and inconsistent with the
axiom that an EIR's basic purpose is to inform. It is significant, also, that
the city and Zinkin do not even claim that there is a prior EIR for a
project on this property. The Woodward Park Community Plan EIR pertained
to a community plan, not a specific construction project. There is no
indication in the record that any EIR was certified for the 1990 rezoning and
plan amendments. The EIR here failed to use the existing physical environment
as the environmental baseline, and none of the city's or Zinkin's arguments
show that any other baseline was permissible. |