Opinion
B198970.
11-10-2008
CITIZENS COALITION TO PRESERVE TELEGRAPH ROAD, Plaintiff and Appellant, v. CITY OF COMMERCE COMMUNITY DEVELOPMENT COMMISSION et al., Defendants and Respondents.
Luna & Glushon, Robert L. Glushon and Jenny M. Kim for Plaintiff and Appellant. Cox, Castle & Nicholson, Kenneth B. Bley, Tamar C. Stein and James R. Repking for Defendants and Respondents City of Commerce; City of Commerce Community Development Commission.
Not to be Published
A citizens coalition appeals from the denial of its petition for a writ of mandate to set aside the City of Commerces certification of an environmental impact report (EIR) and its adoption of a statement of overriding considerations approving the Telegraph Road Corridor Revitalization Project. The citizens coalition contends the City of Commerce violated the California Environmental Quality Act (CEQA) by failing to provide adequate public notice of the draft EIR and by failing to include adequate studies of certain adverse impacts and mitigation measures in the final EIR. We affirm.
Public Resources Code section 21000 et seq. Further statutory references are to this code unless otherwise stated.
BACKGROUND
Telegraph Road Corridor Revitalization Project
The City of Commerce and its Community Development Commission (collectively Commerce) proposed to revitalize a four-mile stretch of Telegraph Road within the citys boundaries. The project is called the Telegraph Road Corridor Revitalization Project and encompasses 350 acres from Atlantic Boulevard on the west to Commerces boundary on the east. Telegraph Road is a major thoroughfare traversing respondent City of Commerce. Some parts are visible from, and run parallel to, the Santa Ana Freeway (Interstate 5 (I-5)). The Citadel outlet center, the Commerce Casino and various hotels are located on Telegraph Road in Commerce. Otherwise, the City of Commerce portion of Telegraph Road is developed with "a number of warehouses and a wide variety of small and marginal industrial and commercial uses that have resulted in a low intensity and fragmented development pattern, and severe underutilization of properties along this major and highly visible City corridor."
Plans for the redeveloped area include multiple retail centers, movie theaters, restaurants, a sports and events arena, car dealerships, and expansion of the Commerce Casino. Commerces plan is to incrementally implement the project and over time "recycle" the existing development. Commerces intended completion date for this project is 2011.
The primary objectives of the Telegraph Road Corridor Revitalization Project are to:
"Continue to implement goals and objectives of the redevelopment plans for the Town Center Redevelopment Project Area No. 2 and Project Area No. 4 by revitalizing the Telegraph Road corridor with a mix of land uses that serves both local and regional needs.
"Provide for transformation of the Telegraph Road corridor into a vibrant urban corridor area for both residents and visitors through development with high intensity mixed commercial uses that promote efficient use of land in accordance with the General Plan land use policy.
"Strengthen the identity of the corridor by creating a new image for the Telegraph Road that expresses an attractive, inviting, high quality character and commercial vitality.
"Effectively reuse currently underutilized properties along the corridor.
"Provide employment opportunities to residents of Commerce and surrounding areas.
"Maximize revenues to offset City costs incurred by providing municipal services and needed infrastructure improvements to the corridor area and ensure that new development provides long-term economic benefit to the City."
Preparation of the EIR
In November 2004, Commerce issued a "notice of preparation" of a "program" EIR for the Telegraph Road Corridor Revitalization Project. The State Clearinghouse for the state Office of Planning and Research distributed the "notice of preparation" to all potentially affected state agencies. Commerce also published the "notice of preparation" in the Commerce Comet newspaper on November 18, 2004.
Once a lead agency determines an EIR is required for a project, the lead agency must send the state Office of Planning and Research and affected agencies a "notice of preparation" of an EIR. (Cal. Code Regs., tit. 14, § 15082, subd. (a).) The "notice of preparation" must, at minimum, include information regarding the description of the project, its location and its probable environmental effects, to permit responsible agencies to make a meaningful response. (Cal. Code Regs., tit. 14, § 15082, subd. (a)(1).)
A "program" EIR may be prepared for a large project made up of a series of related actions. (Cal. Code Regs., tit. 14, § 15168, subd. (a).)
Commerce completed the draft EIR in September 2005. It posted notice of the "completion and availability" of the draft EIR with the county clerk on September 15, 2005. The notice stated that the public review period would begin on September 16, 2005, and continue for the next 45 days until October 31, 2005. The notice further stated that copies of the draft EIR were available for review at Commerces city hall and at the central public library in Commerce. Commerce published this notice of the "completion and availability" of the draft EIR in the Commerce Comet newspaper on September 15, 2005. It distributed 60 copies of the draft EIR to state and local agencies and to representatives of surrounding jurisdictions. The State Clearinghouse of the state Office of Planning and Research distributed Commerces draft EIR to relevant state agencies for comment and review.
Whenever a draft EIR is submitted to the State Clearinghouse for review by multiple state agencies, the review period must continue for at least 45 days. (§ 21091, subd. (a) ["The public review period for a draft environmental impact report may not be less than 30 days. If the draft environmental impact report is submitted to the State Clearinghouse for review, the review period shall be at least 45 days, and the lead agency shall provide a sufficient number of copies of the document to the State Clearinghouse for review and comment by state agencies"].)
During the comment period Commerce received eight comment letters, from the (1) City of Vernon; (2) City of Montebello; (3) Associate Regional Planner, Southern California Association of Governments; (4) CEQA Section of the South Coast Air Quality Management District; (5) Los Angeles Sheriffs Department; (6) Intergovernmental Review/CEQA Branch Chief, California Department of Transportation; (7) County of Los Angeles Department of Public Works; and (8) California Department of Conservation, Division of Oil, Gas and Geothermal Resources. Commerce provided responses to each. The comment letters and Commerces responses were incorporated into the final EIR which was completed and distributed in December 2005.
On December 10, 2005, Commerce published notice in the Los Angeles Times that a public hearing on the final EIR would be held on December 20, 2005. On the scheduled date several members of the public appeared and spoke at the hearing. Robert Levenstein of Heger Realty, representing an affected business within the project area, said that none of the property owners or tenants affected by the project he had spoken to was aware that an EIR was being prepared. Levenstein requested additional time to permit these property owners and tenants to review and provide input concerning the draft EIR.
Michael Huntley, director of planning for the City of Montebello, stated that the City of Montebello felt "strongly" that the project would help revitalize Telegraph Road and the I-5 corridor. He had already submitted written comments on behalf of the city and received Commerces responses but had one remaining concern: He requested a new traffic analysis for the intersection of Garfield Avenue and Whittier Boulevard, both because one of the proposed mitigation measures, a right-turn only lane, was already in place, and because he did not believe traffic at this intersection was as congested as reflected in the draft EIR.
David White, of Citizens Coalition to Preserve Telegraph Road, also spoke at the hearing. From the video presentation Commerce showed at the hearing, White learned that the property on which his business now stood was slated to become an auto dealership in the future. He commented that he had had several early conversations with Commerce officials about the proposed project but that in the past year he had been "pretty much in the dark." White stated that if "the principal of the company [had not seen] a notice in the newspaper, [he] wouldnt have been aware of tonights meeting." White noted governmental agencies received direct notice of the draft EIR and complained that Commerce did not also send individual notices to the owners and tenants of properties situated on the affected portion of Telegraph Road. White requested additional time to review the draft EIR so he and other property owners and tenants could provide Commerce additional input.
A tenant and owner of a business operated as the Halloween Club on Telegraph Road also requested Commerce to delay certification of the EIR to permit further review and input.
Commerce granted the requests and continued the hearing to January 3, 2006.
During this period, Commerce received additional letters and comments from (1) the Executive Director of the I-5 Consortium Cities Joint Powers Authority; (2) the County of Los Angeles Department of Public Works; (3) the City of Montebello; and (4) Anthony Parrille, counsel for the tenant doing business as the Halloween Club on Telegraph Road. Commerce attached these letters, together with its responses, to the final EIR.
At the continued public hearing on January 3, 2006, no member of the public or representative of any public agency requested to address Commerces officials. Commerce (1) approved the proposed project; (2) certified the final EIR; (3) made findings of fact; (4) issued a statement of overriding considerations; (5) issued a "notice of determination" to the county clerk and state Office of Planning and Research; and (6) adopted a mitigation monitoring and reporting program.
The lead agency must file with the county clerk and state Office of Planning and Research a "notice of determination" within five working days after deciding to carry out or approve a project. (Cal. Code Regs., tit. 14, § 15094.)
On February 3, 2006, appellant Citizens Coalition to Preserve Telegraph Road (Coalition) filed a petition for a writ of administrative mandate to challenge the sufficiency of the EIR. Its petition alleged that (1) Commerces publication of notice in a local newspaper failed to comply with CEQA, (2) even if the notice by publication did comply with CEQA, it was inadequate to meet due process requirements, and (3) the EIR failed other CEQA requirements. Commerce answered the petition and asserted the affirmative defense that Coalitions failure to exhaust its administrative remedies barred review of its claims.
The trial court denied the petition for a writ of mandate and entered judgment in favor of Commerce. Coalition appeals from the judgment.
DISCUSSION
CEQAs General Requirements
In enacting CEQA, the Legislature declared that maintaining a quality environment was a matter of statewide concern. (§ 21000, subdivision (a).) CEQA requires state and local public agencies to consider the environmental impacts of projects and to prepare an EIR for any project which has a significant effect on the environment. (§ 21100, subd. (a), § 21151, subd. (a).) The purpose of an EIR is to inform decision makers and the public of the potential environmental impacts of a project and to identify feasible alternatives and measures to mitigate or avoid the adverse effects. (§ 21002.1, subd. (a).) The EIR serves as an informational document for the agency and the public. It does not, however, control the agencys ultimate exercise of discretion. (Cal. Code Regs., tit. 14, § 15121, subd. (b) ["While the information in the EIR does not control the agencys ultimate discretion on the project, the agency must respond to each significant effect identified in the EIR by making findings under Section 15091 and if necessary by making a statement of overriding considerations under Section 15093"].)
"The agency must notify the public of the draft EIR, make it available for public review and comment, and respond to comments. (§§ 21092, 21091, subd. (d)(2)(A).) . . . Before approving the project, the agency must certify that the final EIR was completed in compliance with CEQA and that the agency reviewed and considered the final EIR. (Guidelines, § 15090.)
"An agency cannot approve a project if the EIR identifies significant environmental effects unless the agency finds that (1) mitigation measures required in or incorporated into the project will avoid or substantially lessen the significant effects; (2) those measures are within the jurisdiction of another public agency and have been adopted, or can and should be adopted, by that agency; or (3) specific economic, legal, social, technological, or other considerations make the mitigation measures or alternatives identified in the EIR infeasible and specific overriding economic, legal, social, technological, or other benefits outweigh the significant environmental effects. (§ 21081.)" (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1258-1259.)
Standard of Review
"In reviewing an agencys decision for compliance with CEQA, the scope and standard of the appellate courts review is the same as the trial courts." (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 918.) An appellate court reviews the administrative record independently (Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1139) and its review "extend[s] only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (§ 21168.5.) CEQA guidelines define "substantial evidence" to mean "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." (Cal. Code Regs., tit. 14, § 15384, subd. (a).)
"Thus, the reviewing court `"does not pass upon the correctness of the EIRs environmental conclusions, but only upon its sufficiency as an informative document." (Laurel Heights [Improvement Assn. v. Regents of University of California (1988)] 47 Cal.3d [376] at p. 392, quoting County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189 . . . .) We may not set aside an agencys approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. `Our limited function is consistent with the principle that "The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations." (47 Cal.3d at p. 393, quoting Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283 . . . .) We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements." (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.)
Exhaustion of Administrative Remedies
Coalition asserts several challenges to the adequacy of the EIR. Commerce counters that this court lacks jurisdiction to review the merits of Coalitions arguments because Coalition failed to exhaust its administrative remedies and is thus precluded from raising these challenges to the EIR. We agree with Commerce in part.
Section 21177 is a codification of the exhaustion of administrative remedies doctrine as it applies to judicial review of decisions under CEQA. Section 21177 provides in part:
"(a) No action or proceeding may be brought pursuant to Section 21167 [to challenge decisions under CEQA] unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.
"(b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.
"(c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b)."
Coalition is an organization representing affected property owners, businesses, and persons "on or near Telegraph Road in the City of Commerce" formed after Commerce approved the Telegraph Road Corridor Revitalization Project. (§ 21177, subd. (c).) Daniel White is a member of Coalition who at the December 20, 2005 hearing objected orally to the project. (§ 21177, subd. (b).) Accordingly, Coalition has standing to challenge Commerces approval of the final EIR on "any ground" assertedly not in compliance with CEQA, presented to Commerce, either orally or in writing, by any person during the comment and hearing period. (§ 21177, subd. (a).) On the other hand, Coalition is precluded from asserting any issue not specifically raised by any person or entity under the doctrine of exhaustion of administrative remedies peculiar to CEQA actions.
"This exhaustion of administrative remedies requirement is jurisdictional. [Citation.] `The rationale for exhaustion is that the agency "`is entitled to learn the contentions of interested parties before litigation is instituted. If [plaintiffs] have previously sought administrative relief . . . the [agency] will have had its opportunity to act and to render litigation unnecessary, if it had chosen to do so." [Citation.] [Citations.]
"To advance the exhaustion doctrines purpose `[t]he "exact issue" must have been presented to the administrative agency. . . . [Citation.] While `"less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding" because, . . . parties in such proceedings generally are not represented by counsel . . ." [citation] [citation], `generalized environmental comments at public hearings, `relatively . . . bland and general references to environmental matters [citation], or `isolated and unelaborated comment[s] [citation] will not suffice. . . . `"[T]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them." [Citation.] [Citation.]
"`The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level. [Citations.] [Citation.] An appellate court employs a de novo standard of review when determining whether the exhaustion of administrative remedies doctrine applies. [Citation.]" (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535-536.)
Coalition has failed to exhaust its administrative remedies on the following challenges because they were raised for the first time in Coalitions petition for a writ of mandate, namely that: (1) the project affected more than one area and thus public notice of the completion and availability of the draft EIR should have been published in the Los Angeles Times, the newspaper of largest circulation in those areas; (2) the EIR failed to reveal that conditional use permits would be required for certain of the projects uses, demonstrating the projects inconsistency with existing zoning ordinances and the general plan; (3) the EIR failed to adequately analyze reasonable alternatives to the project; (4) the final EIR, attachment, and statement of overriding considerations impermissibly deferred analysis and mitigation; (5) the traffic mitigation impact fee program was insufficiently specific and inadequate to mitigate significant traffic impacts; and (6) the attachment to the final EIR containing agency comments and Commerces responses contained so much new information the attachment should have been recirculated for public comment.
We decline Coalitions request to take judicial notice of circulation statistics for the Commerce Comet and the Los Angeles Times. (Evid. Code, § 459.)
Under CEQA an EIR must discuss a reasonable range of potentially feasible alternatives to a proposed project presenting a potential for environmental impacts. (See § 21001, subd. (g); § 21002; 21002.1, subd. (a); § 21100, subd. (b)(4); Cal. Code Regs., tit. 14, § 15126.6.)
See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 785 ["A fee-based mitigation program is sufficient under CEQA if there is evidence that mitigation will actually occur"].)
See Cal. Code Regs., tit. 14, § 15088.5 [an EIR must be recirculated after notice and before certification when significant new information is added to an EIR; new information added to an EIR is not "significant" "unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect" or a feasible way to mitigate or avoid such an effect]; Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129 [recirculation is not required where the new information added to the EIR merely clarifies, amplifies or makes insignificant modifications in an adequate EIR].)
Coalition counters, that as to the issue of requiring conditional use permits showing the projects inconsistency with zoning ordinances and the general plan, persons raised this issue sufficient to exhaust its administrative remedies. Coalition notes, its member, Daniel White, stated at the public hearing, "The property that we sit on currently . . . is slated for an auto dealership, . . . I guess, location in the future. . . . We currently have 50 employees at that location." In addition, Coalition asserts, that counsel for the operator of the Halloween Club raised the issue of the projects potential to create conflicts between zoning ordinances and the general plan. In commenting on the EIR, counsel wrote: "Another factor is the consideration of the compliance with the General Plan and its conditions." Counsel added, "The draft EIR did not consider the loss of light industrial space which will be lost with the displacement of the businesses that are affected in the community, the city or the area."
These general comments are too vague and insubstantial to present the "exact issue" of the need for conditional use permits showing potential inconsistencies between Commerces zoning ordinances and its general plan to find Coalition has exhausted its administrative remedies regarding this point. The comments are so lacking in specificity they could not fairly apprise Commerce of the issue to permit a meaningful response. (See, e.g., Bankers Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282 [an isolated and unelaborated comment by a member of the public was insufficient to fairly present the specific issue to the agency for review and analysis]; cf. Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1201-1202 [petitioner had standing to challenge the EIR because it raised the specific objections both orally at a public hearing and in subsequent letters to the city prior to its approval of the EIR].)
Coalition contends it exhausted its administrative remedies with regard to whether Commerce satisfied section 21092, subd. (b)(3)(A). We disagree.
This subdivision provides for notice by "[p]ublication, no fewer times than required by Section 6061 of the Government Code ["one time"], by the public agency in a newspaper of general circulation in the area affected by the proposed project. If more than one area will be affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas."
Coalition asserts that Robert Levenstein raised the issue that published notice of the draft EIR in the Commerce Comet did not comply with the above provision of CEQA when he testified: "I would like to bring to the attention of the Council and the Agency that the property owners and the tenants that are affected by this development . . . at least I havent found one that was notified or had any idea that this was being conducted and Im not saying that they didnt follow the state laws as far as whatever publication they went into whatever, but none of that ever reached[ed] any of the current property owners or the current tenants in this market place and I would respectfully request that a period of time be given for those people who are directly affected by this, to review this and give some input. . . . But I was just taken back by the lack of . . . knowledge of anybody . . . out there in the market place who were aware of this." (Italics added.)
Levensteins comment that he was not complaining that Commerce violated the law regarding notice, however, could not put Commerce on notice of the contrary, namely, that he was complaining that Commerce violated the law regarding notice.
Due Process Notice Requirements
Coalition contends Commerce violated due process by failing to provide individual notice of the draft EIR to "businesses and landowners within the project area."
Relying on Horn v. County of Ventura (1979) 24 Cal.3d 605, Coalition argues that due process required Commerce to provide individual notice rather than notice by publication in a newspaper. We disagree. In Horn, the Supreme Court decided that approval of a subdivision map for property adjacent to the plaintiffs property was an "adjudicatory" function which, under principles of due process, required individual notice to affected landowners. (Id. at p. 610.) In making the determination of the type of notice required in a given context, the court explained the distinction between "adjudicatory" and "legislative" decisions. "Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest. [Citations.] [¶] It is equally well settled, however, that only those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements. [Citations.]" (Id. at p. 612.) The Horn court concluded that the subdivision approval at issue in that case, "like variances and conditional use permits, involve the application of general standards to specific parcels of real property. Such government conduct, affecting the relatively few, is `determined by facts peculiar to the individual case and is `adjudicatory in nature." (Id. at p. 614.) The Horn court held that adjacent landowners such as the plaintiff were entitled to notice and the opportunity to be heard concerning the governments approval of a subdivision map which directly affected their property interests. (Id. at pp. 610, 616; see also Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 548-549 [neighboring landowners were entitled to notice and an opportunity to heard regarding the adjacent citys decision to issue a conditional use permit authorizing a development bordering their land].)
The Horn decision is inapplicable to this case. In Horn, the considerations relevant to the agencys decision whether to approve the subdivision were largely limited to the landowners interests in developing his property as against the detriment such development would cause adjacent property owners such as Horn. In the present case, in contrast, the project will affect innumerable persons, businesses and municipalities. Commerce had to balance the inevitable negative impacts, both short and long term, in implementing such a large project, against the benefits to the city itself, as well as to the surrounding communities, from increased revenues generated by the project and from transformation of this blighted area into a new commercial and entertainment center. In considering all these direct and indirect effects Commerces decision to prepare and adopt the EIR "involve[d] the adoption of a `broad, generally applicable rule of conduct on the basis of general public policy." (Horn v. County of Ventura, supra, 24 Cal.3d at p. 613.) For this reason, Commerces decision was a "legislative" act, rather than an "adjudicatory" act, to which due process notice requirements are inapplicable.
We address the issue of due process notice requirements without deciding whether it was adequately raised so as to preserve the issue for review, and without deciding whether such constitutional issue needed to be asserted during the administrative process to be preserved for review.
Our conclusion is supported by the decision in Oceanside Marina Towers Assn. v. Oceanside Community Development Com. (1986) 187 Cal.App.3d 735. There, Oceansides redevelopment agency issued a negative declaration of environmental impacts from its decision to relocate a railroad switchyard from the center of downtown to the outskirts of town. (Id. at p. 738.) A condominium association challenged the validity of the agencys action, claiming the agency failed to consider the impacts the relocated switchyard would have on its property. (Ibid.) The association also contended, that because its members were adjacent landowners, it was constitutionally entitled to individual mailed notice of the agencys plan to relocate the switchyard. (Id. at p. 743.) The court analyzed the Horn decision and others, and concluded governmental decisions, such as an agencys selection of a site for a new public improvement, "have consistently been held to be `legislative acts exempt from due process hearing requirements." (Id. at p. 745.) Because the court found the decision to relocate the switchyard a "legislative," rather than an "adjudicative," act, it concluded due process notice and hearing requirements were inapplicable. (Id. at p. 747; see also Yost v. Thomas (1984) 36 Cal.3d 561, 570-571 [holding that a city councils adoption of a specific plan, because of its similarity to adoption or amendment of a general plan or rezoning, was a legislative act and thus subject to referendum].)
Mitigation of Adverse Traffic Impacts
Coalition contends the final EIRs conclusions on traffic impacts and mitigation measures for the project are inadequate. Specifically, Coalition argues the final EIR (1) failed to propose adequate mitigation measures to alleviate traffic congestion at the intersection of Telegraph Road and Bandini Boulevard; (2) understated traffic impacts at the intersection of Garfield Avenue and Whittier Boulevard; (3) failed to forecast traffic impacts through the year 2030; and (4) failed to forecast or analyze the impact of the planned expansion of the I-5 freeway.
Bandini Boulevard/Telegraph Road at the I-5 Freeway Ramps
Coalition contends the final EIR did not propose adequate traffic mitigation measures to account for increased traffic from the project in this particular area.
The traffic study in the draft EIR analyzed 18 key intersections within four miles driving distance from the project, including the intersection of Bandini Boulevard/Telegraph Road and the I-5 freeway ramps. The traffic study acknowledged that the project would create significant adverse impacts on traffic conditions in this area. The draft EIR stated that Commerce considered the possibility of relocating freeway ramps to mitigate these negative traffic impacts, but concluded that this mitigation measure was neither effective nor feasible because the freeway ramps were controlled by the state Department of Transportation (Caltrans).
The traffic study proposed no specific feasible mitigation measure for this intersection. The draft EIR, in contrast, stated that traffic conditions in the area of Bandini Boulevard and the I-5 freeway ramps warranted some traffic mitigation measure and stated further study showed that even under current traffic conditions the addition of traffic signals was warranted. Both the draft and final EIR proposed the installation of traffic signals at this intersection to ease traffic congestion as traffic mitigation measure number 10.
The above constitutes substantial evidence that the EIR considered traffic impacts on this intersection with, or in the absence of, the project and proposed a solution to help alleviate these problems. An EIRs discussion of mitigation measures is adequate if it includes feasible measures "which could minimize significant adverse impacts." (Cal. Code Regs., tit. 14, § 15126.4, subd. (a)(1).)
Garfield Avenue and Whittier Boulevard
Coalition contends the final EIR understated traffic impacts at the intersection of Garfield Avenue and Whittier Boulevard in the City of Montebello. Both the draft EIR and final EIR, however, acknowledged that the project would result in significant traffic impacts at this intersection at peak commuting times.
The draft EIR traffic study determined traffic was so congested at this intersection during peak-hour traffic that it rated the intersection a failing score of "F." The draft EIR recommended as a mitigation measure providing an exclusive right-turn lane for the northbound approach to the intersection. Commerce decided that this proposed mitigation measure was not feasible because it required the taking of another jurisdictions land.
The traffic study analyzed the "level of service" at the 18 affected intersections by determining the volume of traffic to each intersections capacity, and measured the delay per stop per vehicle. The level of service was then rated from "excellent," or "A", to "failure," or "F," for each intersection.
Thereafter, the City of Montebello questioned the accuracy of the EIRs traffic counts because they were inconsistent with its own traffic study. Commerce performed a new traffic study of the intersection and determined that the geometry in the earlier study had been incorrect. It therefore performed a new traffic analysis of the intersection and the revised analysis showed traffic at peak hours was not as congested as initially reported, but opined that traffic conditions after the projects completion would still present a significant adverse impact. Further study showed a possible public right-of-way sufficient to widen the intersection and implement alternative mitigation measures. Even with mitigation measures in place, however, the final EIR and attachment stated that traffic was projected to rate a grade of "D" in morning peak hour traffic and of "F" during afternoon peak hour traffic after the project was completed.
The attachment to the final EIR and statement of overriding considerations both acknowledged that traffic impacts from the project at the intersection of Garfield Avenue and Whittier Boulevard would be significant and unavoidable.
The foregoing constitutes substantial evidence that both the draft EIR and the final EIR acknowledged that the project would cause significant and unavoidable adverse traffic impacts at the Garfield Avenue/Whittier Boulevard intersection. Accordingly, Coalitions argument that the EIR understated traffic impacts at this intersection is not well taken.
Traffic Forecasts Through the Year 2030
The EIR discussed current traffic conditions in the project area, and within four miles driving distance from the project. The EIRs traffic study also discussed possible traffic conditions after completion of the project, compared to traffic conditions absent the project, and discussed future traffic impacts through the year 2011. The final EIR did not contain a study projecting potential traffic conditions through either the year 2025 (suggested by the Department of Transportation) or 2030 (suggested by the I-5 Consortium Cities Joint Powers Authority). The EIR forecasted traffic conditions only through the year 2011, on the ground "the year 2011 is the buildout horizon for the project."
Coalition has not carried its burden of showing that substantial evidence does not support Commerces selection of the year 2011 as the last year for the traffic forecast study. Nor has Coalition carried its burden of showing that Commerces response to the other agencies proposals for alternative years was inadequate. Commerce was entitled to rely on its experts opinion the traffic forecast would be sufficient if analyzed up to and through the expected completion date for the project. Disagreement among experts does not alone make an EIR inadequate. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 409; Cal. Code Regs., tit. 14, § 15151 ["Disagreement among experts does not make an EIR inadequate, but an EIR should summarize the main points of disagreement among the experts"].)
Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, cited by Coalition, does not require a different result, because unlike the City of Stanislaus, Commerce forecast the impact of its project to the date of completion. In Stanislaus, the court disapproved an EIRs analysis for a large, 25-year project, where water supplies could not be assured beyond the first five years of the 15-year first phase of the project. (Id. at p. 195.) Here, in contrast, the EIR forecast traffic impacts created by the project up to the expected completion date for the project. Further, Coalition has not demonstrated that a forecast of traffic conditions for 2025 or 2030 would be substantially different than a forecast of 2011 conditions. In short, the evidence does not support the inference that the EIR improperly deferred the issue of adverse traffic impacts for future analysis.
Traffic Impacts from The Planned Expansion of the I-5 Freeway
Coalition contends the EIR should have accounted for future improvements planned for the I-5 freeway. We disagree. Coalition has failed to show that Commerces decision not to analyze the potential impact of the possible future expansion of the I-5 freeway was unreasonable. Although Commerce was aware that Caltrans planned an expansion that involved widening the I-5 freeway, the attachment to the final EIR explained that the traffic study did not analyze this potential because Caltrans did not anticipate commencing the environmental studies until 2006, once commenced the necessary studies could still take years to complete, and as of the date of the final EIR, the proposed physical location of the planned expansion, its design, and the specifics concerning the extent of the expansion were unknown. Accordingly, it was not unreasonable for Commerce to omit analysis of the potential impact of a yet unknown alteration of the I-5 freeway. The relevant "physical environmental conditions" which must be discussed in an EIR are the conditions "as they exist[ed] at the time the notice of preparation [was] published." (Cal. Code Regs., tit. 14, § 15225, subd. (a); see also, Cal. Code Regs., tit. 14, § 15145 ["If, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact"].)
DISPOSITION
The judgment is affirmed. Respondents to recover their costs on appeal.
We concur:
MALLANO, P. J.
HASTINGS, J.