Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CS00026
RAYE, Acting P. J.Real party in interest Sutter Health, Inc. (Sutter) sought to expand its existing medical center in Sacramento’s midtown area. Defendant City of Sacramento (City) is lead agency for this project under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.) Plaintiff Service Employees International Union, United Healthcare Workers West (Union) challenged the proposed expansion.
After City certified Sutter’s environmental impact report (EIR), Union filed a petition for writ of mandate alleging a variety of CEQA violations. The trial court granted the petition on three grounds but allowed Sutter to continue construction while it complied with the writ of mandate. The court denied Union’s remaining claims.
Following City’s production of a revised draft EIR, it recertified the final EIR and the trial court discharged the writ of mandate and denied Union’s motion for attorney fees. On appeal, Union challenges various aspects of the medical center project and the EIR’s response to their impacts. Union argues the EIR failed to fully disclose and mitigate air quality, noise, and parking impacts. In addition, Union contends the trial court erred by allowing the construction of the medical center to continue without making findings required under CEQA. Finally, Union argues the public received significant benefits from the litigation, entitling Union to attorney fees. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As in many cases involving CEQA, the record in this case is lengthy and complicated. However, although the issues are cloaked in scientific terminology and, at first blush, appear both complicated and arcane, we shall endeavor to present Union’s claim with brevity and clarity without sacrificing accuracy.
The Sutter Project
In the summer of 2003 Sutter applied to City to consolidate and expand its existing medical center (the Sutter project). The expansion consists of a new medical center, a medical foundation building, a parking structure, and a medical office building. In addition, the Sutter project includes a “helistop,” or helicopter landing place on the roof of the medical center, and pedestrian bridges to link buildings with each other and with parking facilities.
The area around the medical center consists of residential and commercial development; Interstate 80 runs parallel to, and is elevated above the parking lots along, the eastern boundary of the Sutter project area. The proposed Sutter project totals approximately 700,000 square feet of hospital, office, residential, commercial, and parking space. It will require the demolition and removal of 22 existing multistory buildings and parking lots, and will redevelop several square city blocks.
Sutter conducted a public outreach program to solicit input from the surrounding area, holding public meetings and disseminating a newsletter. Sutter submitted an application to City for general plan amendments, rezoning, variances, lot line adjustments, and special permits.
EIR
City issued a draft EIR (DEIR) for a public review and comment period, which it extended once. City released a final EIR (FEIR), which the planning commission certified and recommended that City approve.
Union appealed the planning commission’s decision. City unanimously approved the Sutter project.
Union’s Challenge
Union filed a petition for writ of mandate alleging City failed to comply with CEQA in certifying the EIR. Following briefing and oral argument, the court found the record “fails to support the conclusions reached in the EIR regarding the impacts associated with the [Sutter project] in the following areas: [¶] a. projections for trip generation (Traffic); [¶] b. estimated parking demand (Parking); [¶] c. [oxides of nitrogen] emissions generated by construction equipment (Air Quality); and [¶] d. those portions of the Statement of Overriding Considerations pertaining to 3(a)-(c) above.” The court granted Union’s petition on those grounds.
The court concluded Union’s remaining claims involving analysis and mitigation of fugitive dust impacts, ultrafine particulate matter emissions, noise impacts from nighttime helicopter flights, and the statement of overriding considerations did not warrant relief.
The court exercised its discretion under Public Resources Code section 21168.9 to fashion a remedy corresponding to its ruling. According to the court, “equitable considerations indicate that completely suspending the Sutter Project is not appropriate in light of the social and economic harms that would result to the general public and Real Parties in Interest.”
All further statutory references are to the Public Resources Code unless otherwise indicated.
The court set forth the portions of the Sutter project that could proceed, notwithstanding its ruling, as authorized by section 21168.9, subdivision (b). The court determined that allowing such limited activities to proceed would not prejudice complete and full compliance with CEQA. After the writ was issued, Union appealed the judgment on the writ.
Revised EIR
City repealed the Sutter project’s approval and filed an initial return to the writ. City released a revised DEIR designed to address the problems identified by the trial court. The revised DEIR set forth background technical information on vehicle trip generation, parking, and construction-related air quality (emissions of oxides of nitrogen, or NOx).
City circulated the revised DEIR for 45 days and received comment letters. City released a revised FEIR that provided responses to the comment letters.
Following a public hearing, the planning commission certified the revised FEIR and recommended that the city council approve the Sutter project. Union appealed the planning commission’s decision.
Subsequent Proceedings
Following a hearing, City denied Union’s appeal and approved the Sutter project. City filed a notice of determination.
City filed a supplemental and final return to the peremptory writ of mandate, and moved to discharge the writ. Union filed a motion for attorney fees.
The trial court found City in compliance with CEQA and entered an order discharging the writ. The court denied Union’s motion for attorney fees. Union filed a timely notice of appeal.
I. STANDARD OF REVIEW
We review an agency’s compliance with CEQA for a prejudicial abuse of discretion. (§ 21168.5.) An agency prejudicially abuses its discretion where either (1) the agency fails to proceed in a manner required by law, or (2) its determination or decision is not supported by substantial evidence. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393 (Laurel Heights); § 21668.5.) An EIR is presumed adequate and the plaintiff in a CEQA action bears the burden of proving otherwise. (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740.)
Substantial evidence includes fact, a reasonable assumption predicated on fact, or expert opinion supported by fact. (§ 21080, subd. (e)(1).) In applying this standard we must resolve reasonable doubts in favor of the administrative finding and decision. (Laurel Heights, supra, 47 Cal.3d at p. 393.) We may not overturn an agency’s approval of an EIR simply because an opposite conclusion would have been equally reasonable. Nor do we weigh conflicting evidence to determine whether adverse effects could be better mitigated. (Ibid.)
An EIR is required to evaluate environmental impacts only to the extent it is reasonably feasible to do so. (Guidelines for Implementation of the Cal. Environmental Quality Act (Guidelines), Cal. Code Regs., tit. 14, § 15151.) CEQA does not demand what is not realistically possible given limitations on time, energy, and funds. (Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274, 286.) Perfection is not required, nor does CEQA demand exhaustive analysis. (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 368.) However, CEQA requires that an EIR reflect a good faith effort at full disclosure. (Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1617; Guidelines, Cal. Code Regs., tit. 14, § 15151.)
An agency that has been informed of the environmental effects of a project possesses the discretion to approve the project if there is no feasible way to lessen or avoid such effects. (§§ 21002, 21002.1, subd. (c).) In evaluating an EIR as an informational document, we consider whether the agency has been adequately informed of the consequences of its decisions and whether the public has sufficient information to evaluate the performance of their elected officials. (Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 620, 622.)
With these guidelines in mind, we consider Union’s challenges to City’s approval of the EIR for the Sutter project.
II. ADVERSE IMPACTS
Union argues the EIR failed to adequately analyze several adverse impacts of the Sutter project. The bulk of Union’s argument centers on the creation of particulate matter during construction and demolition, the measure of this matter, and the mitigation available to alleviate its adverse impact. Union also contends the EIR underestimates the generation of ozone precursors, the potential sleep disturbances caused by the helistop, and parking impacts. We address each contention in turn.
Particulate Matter
Construction projects generate pollutant fine particulate matter (PM) from a variety of sources including grading, excavation, construction, and engine combustion. PM is divided into fine particles, 10 microns in diameter or less, designated as PM10; and ultrafine particles, 2.5 microns in diameter or less, designated as PM2.5.
PM poses a health risk since particulates can lodge deep in the lungs. Elevated PM levels correspond to increased mortality rates and aggravate chronic respiratory illnesses. Diesel emissions comprise a major source of PM2.5, and the Sacramento Metropolitan Air Quality Management District (Sacramento District) recommends that environmental impact analysis must give thorough consideration to diesel-related particulate emissions and the latest toxic control measures.
Segmentation
Union claims City improperly segmented its analysis of PM emitted during construction. Segmenting refers to an agency’s chopping up a larger project into discrete pieces, a process that downplays or ignores the impacts of the project as a whole. (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1357.)
According to Union, City piecemealed its analysis by not combining the various sources of PM emissions generated during construction. Union asserts City should have added together the PM emissions from three different construction sources: fugitive dust during demolition, fugitive dust from grading, and PM emissions from diesel engines. As a result, Union contends “City failed to disclose the amount of PM in the air at any one time from all possible sources.”
This issue was the subject of comments during the review process. In the DEIR, City estimated PM10 emissions during grading and demolition activities at the site. The analysis focused on the largest building slated for demolition and grading of the largest parcel since those activities would generate the most PM10 emissions. These activities would result in significant short-term impacts. However, the DEIR also found that with implementation of appropriate mitigation, these impacts would be less than significant.
The DEIR concluded the dust generated from demolishing the largest building would generate, based on an eight-hour workday, 403.84 pounds per day of PM10, which would exceed PM10 concentration standards. The DEIR determined these emissions could be mitigated to an acceptable level through use of a fugitive dust regulatory rule used by the San Joaquin Valley Unified Air Pollution Control District (San Joaquin District). The DEIR found the dust generated by grading could be mitigated by mitigation measures outlined by the Sacramento District.
In its comments on the DEIR, Union argued City must combine PM emissions from demolition and grading. City disagreed, noting “[a] building must be demolished before new grading can occur on the site.... This typical construction scenario makes it reasonable to assume that demolition and grading will not occur simultaneously....” In addition, City stated: “While it is true that the project involves multiple activities, the EIR does not analyze each activity separately. Instead, impacts are analyzed by grouping together activities that would occur simultaneously to obtain an estimate of the maximum construction impact. This is the accurate way to determine what would be the impact on any one construction day.”
The FEIR noted revisions to the Sutter project’s construction schedule but concluded the revised schedule would not change the DEIR’s air quality analysis. The FEIR stated demolition activities would take place in phases. Buildings in proximity to one another would be demolished during the same phase but would not be demolished simultaneously; instead, demolition equipment would demolish one building at a time.
The trial court, noting City had determined that with mitigation demolition- and grading-generated PM could be separately mitigated below the level of significance, rejected Union’s segmentation argument. The court concluded: “To state it another way, once the EIR appropriately concludes that a potential impact can be mitigated below the level of significance, the question of exactly how large the impact would be in absence of mitigation is moot.”
On appeal, Union renews its argument that the EIR improperly segmented demolition and grading activities in order to show feasible mitigation was possible. Union argues the record demonstrates “simultaneously occurring demolition and grading activities under the revised project schedule.” In support, Union contends the record reveals the demolition of the largest building will overlap with the grading of the largest parcel, the community parking structure. Union also quotes a City consultant’s statement that demolition of the building “could occur concurrently” with construction of the parking structure.
However, the consultant’s statement is contained in a report that explains construction-related NOx modeling. The report identifies the peak NOx emissions period, allowing the consultant to consider a worst-case scenario. The consultant did not consider PM10 emissions because the trial court had not required further consideration of those emissions. The report finds peak NOx emissions would occur when construction of the four buildings began and, contrary to Union’s assertion, would not overlap with grading and demolition activities.
Union also argues City should have added to its analysis PM emissions from diesel engines used during construction. However, the DEIR addressed the health risks from construction-related diesel emissions and concluded they would be short term, significant, and unavoidable. The DEIR also identified mitigation measure 6.2-3(a), which required Sutter to reduce its construction-related PM10 emissions by 45 percent. The city council also heard testimony that the mitigation measure had proven effective in reducing emissions.
Mitigation
Union contends no facts support City’s conclusion that demolition PM emissions could be mitigated to insignificance. In essence, Union disputes the EIR’s determination that demolition PM could be mitigated by wetting down the construction site. Union asserts City was required to perform dispersion modeling or some other scientific technique to determine whether the mitigation would reduce emissions below applicable thresholds.
The EIR incorporated mitigation measures promulgated by the San Joaquin District for projects within its jurisdiction. The Sacramento District does not specify mitigation for PM10 emissions during demolition. The EIR also stated no recommended model exists to calculate PM10 emissions from demolition. Therefore, using dispersion modeling to convert the calculated mass of emissions into the concentration-based significance threshold would be inaccurate.
City relied upon the expert opinion of its air quality consultant in finding the mitigation measure adopted was sufficient. Union argues the expert’s opinion is not supported by any facts in the record and therefore cannot provide evidence in support of the mitigation measure.
The air quality consultant referred to the DEIR’s in responding to questions regarding mitigation measures. Union apparently contends any expert opinion that cites the CEQA documentation is unsupported. We disagree. The DEIR sets forth an explanation of the mitigation measures; the expert considered those explanations in determining whether the mitigation measures were sufficient. This is not “unsubstantiated opinion” that cannot support a CEQA finding, but opinion based on an examination of the mitigation measures set forth in the DEIR.
In addition, City cited statements by a representative of the Sacramento District, who testified that “[o]ur construction mitigation [program is to] identify the impacts, it’s significant, and apply the... on-site mitigation program. And they did that. So it was satisfactory to us.” We thus reject Union’s claim that City’s mitigation conclusion is not supported by substantial evidence.
No Disclosure of PM2.5
Union argues City failed to disclose PM2.5 emissions. According to Union, it had demonstrated that City could have undertaken a variety of methods to meaningfully disclose PM2.5.
The DEIR identified the federal air quality standard for PM2.5 and stated the Sacramento region had “not yet been classified” for this emission, but it was anticipated the Environmental Protection Agency would make PM2.5 designations in the near future. According to the Sacramento District Guide to Air Quality Assessment, in June 2004 the Environmental Protection Agency proposed classifying the Sacramento District as “in attainment” with federal PM2.5 standards. In its comments to the DEIR, Union stated City should have performed a separate analysis of the PM2.5 emissions.
The FEIR set forth state and federal PM2.5 standards and stated the Sacramento District has no recommended method for estimating PM2.5 impacts. The FEIR also outlined the difficulty of applying an annual concentration limit to a construction project. In addition, the FEIR stated the analysis of PM10 necessarily included all emissions of particulates below 10 microns in size, including PM2.5, and that further analysis of PM2.5 was not required.
City’s consultants confirmed the Sacramento District did not require separate analysis of PM2.5. After contacting other air quality districts, the consultants found none of these agencies had adopted methods for evaluating construction-related PM2.5 impacts.
This lack of method for calculating PM2.5 ambient concentrations, the consultant opined, rendered “any attempt to estimate PM2.5 concentrations from construction... pure guesswork. There is no reason to believe that PM2.5 concentrations from construction of the [Sutter] project would be any higher than concentrations produced by any other comparable construction project. Moreover, the [Sutter] project is implementing mitigation to control particulate matter emitted from construction equipment, such as the use of add-on control equipment, so PM emissions would be reduced.”
The trial court considered PM2.5 emissions and concluded City’s decision was supported by substantial evidence. The court cited testimony by a representative of the Sacramento District indicating that “PM 2.5 is an emerging issue that the Sacramento District does not analyze at this point.” In addition, “the [Sacramento] District viewed the air emissions analysis as satisfactory and as providing the City with sufficient information to make an informed decision on the project.”
On appeal, Union renews its efforts to set forth a methodology for analyzing PM2.5 emissions, arguing City should have adopted this method. However, City directly addressed Union’s methodology when it was presented in response to the revised DEIR. Union relied on PM2.5 standards adopted by the South Coast Air District and Kern County Planning Department; City noted both these districts have severe PM2.5 problems. The Sacramento District has not adopted a standard by which to determine the significance of PM2.5 emissions. Given this evidence, we do not find that City violated CEQA by declining to perform an analysis of PM2.5 emissions.
Estimate of NOx Emissions
Union contends City mishandled its assessment of NOx throughout the EIR process. According to Union, City substantially underestimated NOx emissions from construction of the Sutter project.
The EIR analysis included air emissions generated during construction. The analysis used the URBEMIS (urban emissions) modeling tool to estimate the mass of NOx that construction of the Sutter project would emit. The applicable significance threshold consists of the mass of NOx emission expressed in pounds per day and is set at 85 pounds per day.
The DEIR stated NOx emissions would vary over the course of construction, depending on the activities and equipment used each day. Certain construction activities would overlap, so the DEIR calculated corresponding emissions for each activity, added peak NOx emissions together, and estimated a total of 323.86 pounds per day. Since this total exceeded the 85-pounds-per-day threshold, the DEIR concluded there would be a short-term significant impact.
Union’s consultant estimated NOx emissions at 906 pounds per day. The FEIR responded by stating the higher number would be reached only if the most intense activities from all phases of construction occurred simultaneously. The FEIR stated this assumption was incorrect because these activities would not coincide. The trial court found the record did not contain documentation supporting City’s estimate of NOx emissions.
In the interim, City’s consultant had purged the files containing the original URBEMIS model runs, forcing City to rerun the URBEMIS model. City produced a revised DEIR containing the results of the new URBEMIS model and explaining the underlying methodology. The consultant focused on peak emissions, when the most construction activities would coincide. Even though the construction schedule could change, the sequence of events would remain the same; therefore, the model assumed a worst-case scenario of NOx emissions of 293 pounds per day.
Union challenges the conclusions of City’s consultant, arguing the consultant arbitrarily omitted certain items from the list of construction equipment used on the Sutter project. Union cites an equipment inventory by Turner Construction (Turner) that, Union asserts, includes various pieces of construction equipment City should have used in estimating peak emissions.
City’s revised DEIR stated demolition, grading, and building construction do not occur all at the same time. City’s consultant used the period in which the most NOx-generating construction activities would overlap, considering this the “worst case” peak. The consultant used the equipment inventory provided by Turner as inputs into the URBEMIS model consistent with the Sacramento District’s CEQA Guide. According to the consultant, since less equipment operates during foundation work than during building construction, peak NOx emissions take place during periods of overlapping building construction.
In addition, City adopted a mitigation measure limiting the equipment that could be used during the peak construction period to the equipment used to model peak NOx emissions. The Sutter project incorporated the mitigation measure.
The record reveals City had a reasonable basis for relying on the effectiveness of the mitigation measure. A representative from the Sacramento District testified before the city council that URBEMIS analysis “is an art as well as a science” and provided City with information sufficient to make an informed decision on the Sutter project. The Sacramento District viewed City’s NOx analysis as satisfactory.
Union also accuses City of using significantly lower default horsepower values for equipment modeled, which skews the URBEMIS model. However, the revised FEIR stated the specific information about the type and number of concrete delivery trucks was unavailable. City’s consultant also stated: “Concrete delivery trucks (and off-road dump trucks) are not included in the modeling because the equipment list in the Revised Draft EIR focuses on equipment expected to be in use during the building construction phase in Spring 2007, when ‘peak’ NOx emissions are expected to occur. Off-road dump trucks and on-road concrete delivery trucks would not be used during this phase. In addition the [Sacramento District] does not require that delivery vehicles be factored into the model.”
Union also argues the URBEMIS model underestimated NOx emissions by using artificially low horsepower ratings for certain equipment. City argued some of the equipment listed in the general contractor’s inventory did not have a direct counterpart in the URBEMIS model. In those cases, City’s consultant used the equipment in the URBEMIS database “closest in type, number, and horsepower to the project equipment identified by the general contractor.”
As the trial court pointed out, Union’s assertions regarding omitted concrete trucks and the differing horsepower ratings amounts to a dispute among experts on a technical subject: the proper assumptions and inputs to be used in the modeling of projected NOx emissions. Under CEQA, we do not have the duty of determining the validity of the conclusions expressed in the EIR. Instead, we determine the adequacy of the EIR as an informational document. (Laurel Heights, supra, 47 Cal.3d at p. 409.)
A disagreement between experts does not make the conclusions of an EIR inadequate. (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397.) We scrutinize the data and evidence not to determine whether they are irrefutable, or whether they could have been better, but to determine whether the studies are sufficiently credible to be considered as part of the total evidence to support the EIR’s findings. A clearly inadequate or unsupported study, however, is entitled to no judicial deference.
Here, we do not find the evidence supporting the NOx emissions to be inadequate or unsupported. City’s NOx analysis is sufficiently credible to be properly considered as support for the findings in the EIR. Union’s arguments center on technical matters upon which experts may legitimately disagree. The EIR classifies the peak NOx impact as both significant and unavoidable, greatly in excess of the Sacramento District’s level of significance. Union’s proposed inputs would lead to a higher estimate of peak NOx emissions. However, Union has not shown that these higher estimates render the EIR analysis not credible.
Sleep Disturbance
Union argues City failed to disclose the extent of sleep disturbance from helistop operations. According to Union, City performed a simplified sleep disruption analysis that failed to adequately describe the nature and extent of the actual impact.
The DEIR analyzed noise impacts from construction and operation of the Sutter project as well as from helistop operations. The DEIR concluded that daily noise impacts from the helistop operations would comply with applicable noise standards and would not cause significant noise impacts.
The DEIR set forth a separate analysis of the potential for helistop operations to disturb the sleep of nearby residents, based on data from field testing using helicopters and from modeling. According to the analysis: “There are currently no established criteria establishing at what point sleep disturbance would occur, or what is considered acceptable. Using the acceptable noise level standards for various uses found in the City’s General Plan is not appropriate because these standards use a 24-hour metric monitoring approach and helicopter noise would only affect people for short periods of time. Nevertheless, people living nearby could potentially be severely affected during the short duration of their exposure to the helicopter noise, especially if they were exposed during nighttime hours when they may be trying to sleep. Consequently, it is more appropriate to use the standards found in the City’s Municipal Code. These standards... set ‘not to be exceeded’ exterior noise levels of 70 dBA during the nighttime hours of ten p.m. to seven a.m. The Municipal Code does not set interim noise levels for residences when noise is being generated by a source that is not another residence. [¶]... As shown, maximum noise levels generated by the helicopter could easily exceed the 70dBA maximum allowed by the Municipal Code at some areas containing residential uses, including apartments near L Street and 28th Street. Consequently, this would be considered a significant impact.”
In response to the DEIR, Union submitted comments from an acoustical consultant. The consultant proposed that City revise its significance threshold based on the percentage of people expected to experience sleep disturbance, instead of the noise limit derived from the municipal code. The consultant also suggested City should prepare “contours of the probability of sleep disturbance and awakening.”
City responded by pointing out “no established criteria exist to determine at what point sleep disturbance would occur” and concluded the municipal code provided an appropriate standard.
Union contends the EIR’s sleep disruption analysis failed to adequately disclose the impact. We disagree. The DEIR included data on the daily community noise and worst-case scenario. The DEIR describes model results and noise measurements taken during helicopter trials at sites around the hospital, and discussed residential uses where sleep disturbance could occur. In a memorandum to the city council, City’s principal planner described the potential effects of occasional, short-term noise from helicopter flights.
City acted within its discretion in relying on a quantitative significance threshold derived from the municipal code rather than adopting the suggested methodology of Union’s consultant. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 371-373.) This threshold was designed to address the potential that single event noise from helicopters could disturb the sleep of nearby residents.
The record reveals City performed studies to analyze the Sutter project’s noise impacts, an analysis which included sleep disruption from the helistop. The EIR provided data and modeling, and utilized an appropriate significance threshold. Ultimately the EIR concluded the helistop would produce a significant, albeit infrequent, impact that could not be mitigated to a less-than-significant level. CEQA requires an EIR to reflect an agency’s good faith effort at full disclosure; it does not mandate perfection or exhaustive analysis. (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26.)
Parking Impacts
Union also argues City failed to accurately disclose the parking impacts associated with the Sutter project. Principally, Union objects to City’s reliance on one study, which Union contends suffered from numerous defects.
City’s transportation consultant, DKS Associates, conducted parking surveys, ran a model based on average parking generation data compiled by the Institute of Transportation Engineers (ITE), and estimated a parking shortfall of up to 686 spaces in the worst-case scenario. As part of the Sutter project, Sutter developed a Transportation Systems Management (TSM) Plan and Parking Management Program (PMP) to reduce parking demand, monitor demand on an ongoing basis, and provide additional parking supply if necessary. Sutter also promoted alternate commute modes to reduce the total number of vehicles, as required by City under City Ordinance No. 88-082.
City hired a second consultant, Nelson/Nygaard Consulting Associates, to conduct a peer review of the effectiveness of the TSM Plan and PMP. Nelson/Nygaard determined “there will be sufficient parking at the proposed [medical center] to accommodate full [medical center] project parking demand.”
The EIR concluded that the combined effect of the Sutter project and the nearby Trinity Cathedral project could potentially generate a parking shortfall. The EIR included mitigation measure No. 6.7-1, which provides that if the TSM/PMP monitoring “identifies parking demand that exceeds available supply, [Sutter] shall make additional parking supplies available in an expeditious fashion such that parking supply is equal to or exceeds demand.”
Union quarrels with the methodology employed by City’s consultants in estimating parking demand. Union focuses on parking demand associated with the Women and Children’s Center (Women’s Center) component of the Sutter project.
DKS performed a survey of the existing Sutter Memorial Hospital in order to calculate parking demand at the proposed Women’s Center. The existing hospital is to be closed. This approach did not account for any reductions in employee parking demand anticipated from consolidating hospital operations at a single location and internalization of uses “in order to ensure that the approach would be conservative.”
The survey revealed a peak accumulation of 898 spaces at the hospital. DKS used this to calculate a hospital parking rate by dividing the peak parking occupancy by the size of the facility, yielding a peak parking rate of 2.09 spaces per 1,000 square feet of hospital space. DKS multiplied this rate by the size of the proposed Women’s Center, resulting in a peak parking demand of 833 spaces attributable to the hospital.
Union criticizes City for performing its own parking surveys instead of using parking projections from ITE’s Parking Generation Handbook. However, the draft EIR explicitly stated that site-specific data is considered more representative of local conditions than the more general ITE estimates. In addition, ITE specifically endorses using local data. The methodology of the parking demand study is described in detail in the EIR and supported by expert opinion prepared by DKS explaining in detail the parking survey results.
Union also faults DKS for using only a single study (or data point) negated by “multiple directly contradictory surveys,” arguing the methodology was flawed. However, the consultants stated that “while detailed accumulation counts were not conducted on other days, [hospital] parking was observed at other dates during 2004 and 2005 by DKS Associates and at no time was the parking supply observed to be fully occupied.”
Union claims the EIR’s parking analysis suffers from other “material defects” because it was performed on an “anomalous time (noon) and day (St. Patrick’s Day),” failed to consider on-street parking, and failed to take into account the “parking reservoir needed to respond to overlapping parking demands at shift-change.” We are not persuaded.
Union offers no evidence that St. Patrick’s Day is a significantly lighter-than-normal day for hospital visits. City pointed out that St. Patrick’s Day is not a holiday, nor is it normally celebrated during business hours. As for the time of day, the EIR points out the ITE manual on parking generation shows that midday parking demand at surveyed hospitals is comparable to the daily maximum. Union’s contentions regarding the timing of the study do not undermine the study’s relevance as substantial evidence supporting the EIR.
City, in responding to comments, explained that there was a rational basis for not including off-site and street parking in the survey, based on the differing character of the neighborhood in which the current and new sites are located. Most of the on-street parking in the vicinity of the old hospital is located in a residential neighborhood, on-street parking is restricted, and the limited amount of on-street parking would not change the analysis.
According to Union, the EIR improperly failed to account for parking demand during employee shift changes, therefore overlooking the parking “reservoir” needed to respond to overlapping parking demands at shift change. However, the EIR determined that a parking buffer was not necessary, given the Sutter project’s urban setting and the availability of valet parking. Union’s claim does not undermine that the study estimating demand is substantial evidence in support of the EIR.
Union also contends the EIR is inconsistent with parking surveys conducted at the same parking lot by The Hoyt Company. The EIR stated it did not rely on the Hoyt report because it was not able to obtain the underlying data, and the report was two years old when the DEIR was drafted. Instead, City conducted new parking accumulation studies.
The fact that other data and surveys, such as the Hoyt report and the ITE manual, reached different conclusions does not, by itself, invalidate the conclusions of the EIR. The ITE data is merely one form of expert opinion, which is not in and of itself sacrosanct. Nor is the Hoyt report beyond contradiction or refinement. Our function is not to resolve conflicts between experts, and we do not have a valid basis to reject the EIR because there is a difference of opinion among experts. (National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1352-1353.)
Mitigation
Union argues City failed to adequately mitigate significant impacts. According to Union, City improperly used Sacramento District minimum guidelines to avoid adopting additional feasible mitigation measures, and arbitrarily refused to offer noise abatement measures.
Use of Guidelines
Union contends City improperly relied on “generic mitigation measures suggested by” Sacramento District to “limit mitigation opportunities for both construction and operational NOx emissions.” In addition, Union argues City improperly rejected the mitigation measures proposed by Union’s consultant.
Under CEQA, if an agency approves a project, then the agency has an obligation to adopt feasible mitigation measures that would substantially lessen the project’s significant environmental effects. (§ 21002.) Economic, social, or other conditions may render proposed mitigation measures infeasible, and CEQA authorizes the lead agency to approve the project despite significant and unavoidable impacts. (§ 21002.1.)
Mitigation is feasible if it is capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors. CEQA does not require an analysis of every imaginable alternative or mitigation measure. Instead, CEQA is concerned with feasible means of reducing environmental effects. (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1083.)
Our task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We possess neither the resources nor the expertise to perform such an analysis, even if the substantial evidence standard of review permitted it. (A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1809 (Local & Regional Monitor).)
For construction emissions, the DEIR identified three measures recommended in the Sacramento District Guide to Air Quality Assessment: requiring a 20 percent reduction in NOx emissions from heavy duty off-road vehicles, submittal of detailed inventory of equipment to air district, and compliance with 40 percent limit on opacity of emissions. The DEIR identified four additional measures that went beyond the guide’s recommendations: equipment maintenance, limited idling times, use of alternative fuels, and use of electrically driven equipment. The DEIR concluded that despite these measures, construction-related NOx emissions would still exceed the 85-pounds-per-day threshold and would remain a short-term significant impact.
In addition, the DEIR found long-term NOx and ROG (reactive organic gases) would be emitted by boilers and other on-site equipment, and by vehicles traveling to and from the site. These emissions would exceed the threshold. The DEIR identified measures to address the impact, such as preferred parking for vanpools, subsidizing employee transit, and installing low-emission equipment. These measures would achieve the Sacramento District’s recommended target, which recommended reducing long-term emissions by 15 percent. The DEIR concluded that despite these measures, the thresholds would be exceeded and the NOx/ROG impacts would remain significant.
In comments to both the DEIR and revised DEIR, Union’s consultant proposed numerous mitigation measures related to emissions. Among other measures, the consultant proposed paying an off-site mitigation fee, using newer engines and cleaner fuels, and installing add-on technologies. City responded to each proposal.
City either accepted certain suggested mitigation measures proposed by Union or explained that suggested measures were already covered by mitigation measures then in place, were ineffective, or were infeasible.
City adopted three of the consultant’s suggestions. It restricted construction equipment to the list used to run the URBEMIS model. City also adopted a mitigation measure requiring Sutter to retain an on-site construction manager to enforce measures aimed at reducing NOx emissions.
Union also proposed requiring Sutter to pay an on-site mitigation fee for NOx emissions during construction. The Sacramento District requested that Sutter pay the fee, and City incorporated this requirement into the Sutter project.
City considered the other mitigation measures proposed, finding some already included in some form in the mitigation measures incorporated into the EIR. City rejected other measures as infeasible.
The Sacramento District, in commenting on the revised DEIR, endorsed City’s approach. The district stated mitigation measure 6.2-3 provided “a performance based measure that allows the construction contractor to identify the emission reduction technologies necessary for mitigation compliance just prior to construction when exact equipment is known.” CEQA authorizes the use of performance standards as a means of ensuring impacts are mitigated. (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275-1276.)
Mitigation measure 6.2-3(d)-(g) recommends equipment maintenance, limited idling times, and use of alternative fuels and electrically driven equipment.
The Sacramento District also recommended revising the Sutter project’s air quality mitigation plan. City revised the Sutter project, requiring a goal of 35 percent use of alternative transit modes. This revision included emissions monitoring and authorized the Sacramento District to impose additional listed measures to ensure compliance with this goal. The Sacramento District endorsed the Sutter project after City adopted these measures.
The Sacramento District attached a worksheet modeled after its guide to its endorsement of the Sutter project’s air quality plan. The worksheet demonstrated how the Sutter project achieved the Sacramento District’s requirement to incorporate sufficient measures to achieve a 15-point target.
The Union argues CEQA required City to consider more mitigation measures. According to Union: “The 20% construction figure and 15-point operational target undoubtedly promotes administrative convenience. CEQA, however, precludes the elevation of convenience over the environment. Here, the City used [Sacramento District’s] generic mitigation measures to illegally circumscribe CEQA’s obligation to adopt all feasible mitigation measures prior to overriding significant environmental effects.”
We disagree. In response to Union’s proposal to require off-site mitigation, City stated no programs had been adopted to require funding to scrap old, high-emission vehicles; replace or repower school or transit buses; retrofit off-site vehicles; contribute to off-site transportation demand programs; repair vehicles; provide electrical garden equipment; or retrofit homes. City concluded the unavailability of such programs rendered Union’s suggested mitigation measures infeasible.
CEQA does not require an agency to consider a mitigation measure that itself may constitute a project at least as complex, ambitious, and costly as the underlying project. (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 842.) Here, City consulted with the Sacramento District about mitigation for operational emissions. The Sacramento District provided input and City adopted the recommendations and abided by district guidelines. As a result, the Sacramento District approved the Sutter project. City’s action complies with CEQA.
Noise Abatement Mitigation
Union argues City arbitrarily refused to offer noise abatement measures. According to Union, it offered City a mechanism to reduce the significant impact of sleep disruption by offering citizens the opportunity to retrofit their homes with sound-insulating materials.
As noted, the DEIR concluded the Sutter project would have a significant impact stemming from sleep disturbance from helicopter operations. The DEIR identified one mitigation measure, a requirement that helicopter operators use north/south flight plans over the nearby freeway. Union’s noise consultant proposed additional mitigation. City adopted one proposal, to adhere to the standards of the Helicopter Association International’s “Fly Neighborly Program.”
However, City rejected Union’s proposal to retrofit windows and doors in residences impacted by helicopter noise. The FEIR found the measure not feasible given the limited impact of the helistop use. Flights would average fewer than one per day, with most occurring during the daytime. The DEIR noted the expense of upgrading windows and doors, and stated the mitigation would not be enforceable. City could not require property owners to make sound-reducing upgrades to their properties. City also stated that because many surrounding residential properties were older, owners who wanted to upgrade might be constrained by original construction materials and building design.
CEQA does not require that an agency adopt every conceivable mitigation measure. Instead, mitigation measures are suggestions, to be adopted if economically and technically feasible and practical. Mitigation must be enforceable. (San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d 1502, 1519; No Slo Transit, Inc. v. City of Long Beach (1987) 197 Cal.App.3d 241, 256; Guidelines, Cal. Code Regs., tit. 14, § 15126.4, subd. (a)(2).)
We uphold an agency’s decision not to adopt a particular mitigation measure if it is supported by substantial evidence. (Local & Regional Monitor, supra, 12 Cal.App.4th at p. 1809.) Here, City’s decision to reject Union’s retrofitting proposal is supported by substantial evidence.
III. SEVERANCE UNDER SECTION 21168.9
Union argues the court erred by allowing Sutter to continue portions of the Sutter project after granting Union’s petition and issuing a writ. Sutter argues Union’s argument is moot.
Section 21168.9, subdivision (b) allows a court to sever noncompliant project elements if the court finds the specific project activity is severable, severance will not prejudice full and complete compliance with CEQA, and the court has not found the remainder of the project to be in noncompliance with CEQA.
After finding City failed to comply with CEQA in certifying the Sutter project, the court’s judgment directed a preemptory writ of mandate be issued to City to (1) void the certification of the EIR, (2) suspend construction of the Sutter project, and (3) direct CEQA compliance regarding trip generation, parking, and construction-related NOx emissions.
The court severed three project elements from this mandate of suspension, finding them independent and unrelated to the CEQA violations. The severance encompassed excavation of the new energy center, medical office space, parking, and a related pedestrian tunnel; construction of the community parking structure; and completion of street reconstruction after utility trenching.
Sutter argues Union’s appeal of the court’s severance decision is moot. We agree.
The court issued its ruling in September 2006 allowing certain activities to proceed. Union appealed that ruling. However, Union did not seek review in this court of the trial court’s 2006 decision to sever certain construction activities.
In December 2006 City certified the revised EIR and reapproved the Sutter project. In February 2007 the trial court granted City’s motion to discharge the writ of mandate. At that point City was free to continue the Sutter project without regard to the interim limits on construction previously imposed by the trial court. The issue of severance remained relevant from September 2006 through February 2007, but Union failed to raise the issue prior to the present appeal.
Therefore, Union’s appeal cannot have the practical effect of providing Union with some measure of meaningful relief. Instead, Union presents us with only an academic legal argument regarding severance. (See Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 872-873.) Accordingly, Union’s severance argument is moot and will not be considered on appeal.
IV. ATTORNEY FEES
Finally, Union argues the trial court erred in denying its motion for attorney fees under Code of Civil Procedure section 1021.5. According to Union, its suit provided significant public benefits in three distinct areas.
Based on the trial court’s grant of Union’s petition for writ in connection with the original EIR, Union filed a motion for an award of attorney fees in the amount of $307,090.80. The trial court denied the motion.
In denying the motion, the trial court determined that “this action did not confer a significant benefit on the general public or a large class of persons. While the Court agreed with petitioner in finding that the conclusions of the EIR in three discrete areas were not supported by substantial evidence in the record as it then existed, in the end respondent was able to repair the blemishes in the original environmental review by making evidence supporting those conclusions available and recirculating the relevant portions of the EIR. And once the evidence was available, as set forth in detail above, the Court found the final EIR to be in conformity with CEQA. In the end, there was no discovery that the challenged impacts were significantly worse than originally estimated, there was no change in the scope of the project, and, because the impacts were not found to be worse than originally estimated, there was no addition of significant new mitigation measures occurring directly as a result of this action. Thus, while petitioner successfully asserted a defect in CEQA’s process, the correction of that defect did not change the project, and further does not appear to the Court to establish any kind of broad precedent applicable to future cases. [Citation.] This case is therefore one of relatively narrow scope and impact, quite unlike cases in which successful petitioners have received fee awards in CEQA cases....” (Italics added.)
Code of Civil Procedure section 1021.5 is a codification of the private attorney general doctrine. The objective of the doctrine is to encourage suits effectuating a strong public policy by awarding substantial attorney fees to those who successfully bring such suits, resulting in benefits to a broad class of citizens. (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 647 (County of Colusa).)
Code of Civil Procedure section 1021.5 provides, in part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”
The decision whether to award attorney fees under Code of Civil Procedure section 1021.5 rests initially with the trial court. Using its discretion, the trial court must realistically assess the litigation and determine, from a practical perspective, whether or not the statutory criteria have been met. Since section 1021.5 states the criteria in the conjunctive, each of the statutory criteria must be met to justify a fee award. (County of Colusa, supra, 145 Cal.App.4th at pp. 647-648.)
In reviewing the trial court’s decision for an abuse of discretion, we pay particular attention to the trial court’s stated reasons in denying the fees and determine whether it applied the proper standards of law in reaching its decision. We may not disturb the court’s exercise of its discretion absent a showing that there is no reasonable basis in the record for the award. (County of Colusa, supra, 145 Cal.App.4th at p. 648.)
Union contends the trial court abused its discretion in denying its attorney fees motion. First, Union argues it conferred a significant public benefit by requiring City to revise and recirculate the EIR, giving the public an opportunity to review and comment on the studies and data underpinning the EIR. In addition, Union contends it forced City to provide significant additional information pertaining to the EIR.
The trial court considered this argument but determined City’s release of additional evidence and recirculation of the EIR amounted to “repair[ing] the blemishes in the original environmental review,” conferring only a narrow benefit to the public. However, Union contends Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173 (Bowman) and the trial court’s statements in granting the original petition compel a different result.
In granting the original petition, the trial court noted City failed to include for public review the underlying studies and data that supported the EIR’s conclusions on the issues of trip generation, parking, and NOx emissions. The court stated: “The community affected by this project has the right, conferred by the terms of CEQA, to evaluate and make informed comment upon issues that impact the quality of their daily lives. The Court will not gloss over the impingement of such an important right.”
Union contends Bowman found that a petitioner who successfully forces an entity to allow more public input and provide more evidence in support of its CEQA process provides a significant public benefit. In Bowman, the trial court granted a partial attorney fees award based on the petitioners’ successful due process claim. The court found the petitioners did not receive a fair hearing when a housing project was first approved, since the city failed to provide adequate notice of a council hearing on the controversial project. (Bowman, supra, 131 Cal.App.4th at pp. 175-176.) The city ultimately approved the project. (Id. at p. 176.)
The appellate court found the trial court had not abused its discretion in awarding attorney fees and costs in connection with the due process claim. The trial court found the due process claim significant because removal of the “‘due process infirmity was key to the Court being able to fully consider the remaining issues raised by petitioners.’” (Bowman, supra, 131 Cal.App.4th at p. 178.) The Bowman court concluded: “The significance of the due process issue was a matter for the trial court’s judgment, and we find no cause to disturb its exercise of that discretion.” (Bowman, at p. 178.)
The court noted the remand following the due process claim resulted in a great deal of additional public input on the project, including substantial new written submissions as well as oral testimony from city staff and opponents of the project. The trial court noted both parties used the opportunity to supplement the administrative record to provide additional evidence. (Bowman, supra, 131 Cal.App.4th at p. 180.)
Here, in contrast, Union is asking us to find the court abused its discretion in failing to find substantial benefit in forcing City to provide more evidence underpinning its CEQA decisions and fleshing out its mitigation findings. The trial court carefully considered the impact of Union’s successful challenge to the EIR and found that while it uncovered defects in the process, these defects were repaired and, in the end, the challenged impacts were not significantly worse than originally estimated. In Bowman, the petitioners’ actions enabled the trial court to better assess the remaining claims; no such benefit appears in the present case.
Union contends the trial court improperly imposed an additional “outcome” requirement that the further disclosures must result in substantial changes in the EIR or the Sutter project itself. However, the trial court merely considered this as one factor in determining whether the litigation produced a significant benefit.
Union also claims its petition precluded City from establishing a dangerous precedent by requiring City to circulate the data and studies supporting its conclusions in the EIR. Union labels this a “cognizable public benefit.” In essence, this is simply a repackaging of Union’s first claim, which we do not find persuasive.
In support, Union relies on Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810 (Friends). In Friends, the trial court awarded attorney fees in a quiet title action to declare a public easement for use of a road along an irrigation canal. The trial court found a public easement for recreational purposes had been created along the canal, and subsequent efforts by the defendants to deny the public access were unlawful. (Id. at pp. 824-832.) The court awarded attorney fees after finding the right at issue involved ensuring the right to public ownership of public property. (Id. at pp. 833-834.) Thus, the litigation produced a broad public benefit in support of an attorney fees award. Here, there is no such widespread public benefit.
Finally, Union contends the litigation resulted in additional mitigation measures that conferred a public benefit. Union points to three specific measures: payment of off-site construction NOx mitigation fees to the Sacramento District for emissions exceeding the 85-pounds-per-day threshold, a cap on NOx construction emissions, and a construction site manager to verify restrictions on truck idling time. These mitigation measures, Union contends, benefited the public by reducing its exposure to NOx emissions.
As to the NOx mitigation fee, Sutter had already agreed to pay a $100,000 fee as part of the original Sutter project. The other additional mitigation measures were designed to ensure that NOx emissions remained below the limits outlined in the EIR. These measures, in and of themselves, did not impose lower emissions, but instead provided a means for accomplishing what the EIR set out to achieve.
Various courts have concluded not every CEQA enforcement action supports a request for attorney fees under Code of Civil Procedure section 1021.5. In Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31 (Christward), the appellate court affirmed the grant of a writ petition that required the county to revise a mitigation monitoring plan and a water analysis in the EIR. The court rejected the petitioner’s other claims. The appellate court determined the successful claims did not confer a public benefit because they rested on a minor procedural CEQA issue. (Id. at p. 50.)
The appellate court in Stevens v. City of Glendale (1981) 125 Cal.App.3d 986 (Stevens) required the city to provide public notice and comment on a late-added street extension. The court rejected all remaining CEQA claims. The court denied the petitioner’s motion for attorney fees, deeming the petitioner’s success a “technical point” and not an important right affecting the public interest. (Id. at pp. 1000-1001.)
Union attempts to distinguish these cases, arguing the present case involves “significant public rights affecting a broad swath of Sacramento residents and resulting in substantial tangible benefits,” while Christward and Stevens involved minor environmental impacts and small numbers of residents. However, as in the cases cited, Union prevailed on claims regarding technical defects in the CEQA process. Union successfully petitioned to require City to make public the studies and evidence in support of the EIR’s conclusions on trip generation, construction-related trip generation, NOx emissions, and parking.
We agree with the trial court’s assessment that the underlying litigation is one of relatively narrow scope and impact insufficient to merit an award of attorney fees under Code of Civil Procedure section 1021.5.
DISPOSITION1
The judgment is affirmed. Respondents shall recover costs on appeal.
We concur: ROBIE, J., MORRISON, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.