Case No. $202828
IN THE SUPREME COURT ow.
ELDS
STATE OF CALIFORNIA 7, .
soeOCT 10 2012
NEIGHBORS FOR SMART RAIL, >»...
A Non-profit California Corporation, Frank A. iVicGuire Clerk
Petitioner and Appellant,
y Deputy
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY;
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY BOARD,
Respondents,
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
AUTHORITY; LOS ANGELES COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY BOARD,
Real Parties in Interest and Respondents.
Second District Court ofAppeal, Division 8 (Case No. B232655)
Certified for Partial Publication
Affirming a Judgment and Order by the Superior Court of the State of
California for the County ofLos Angeles (Case No. BS125233)
Honorable Thomas J. McKnew,Jr.
ANSWERBRIEF ON THE MERITS
OFFICE OF THE COUNTY REMY MOOSE MANLEY, LLP
COUNSEL TIFFANY K. WRIGHT,210060
COUNTY OF LOS ANGELES SABRINA V. TELLER, 215759
JOHN F. KRATTLI, 82149 AMANDAR.BERLIN, 229357
County Counsel 455 Capitol Mall, Suite 210
RONALD W. STAMM,91919 Sacramento, CA 95814
Principle Deputy County Counsel Telephone: tie) 443-2745
One Gateway Plaza Facsimile: (916) 443-9017
Los Angeles, CA 90012
Telephone: 213) 922-2525 »
Facsimile: (213) 922-2530
Attorneysfor Real Parties in Interest and Respondents
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
AUTHORITY; LOS ANGELES COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY BOARD
Case No. §202828
IN THE SUPREME COURT
STATE OF CALIFORNIA
NEIGHBORS FOR SMARTRAIL,
A Non-profit California Corporation,
Petitioner andAppellant,
Vv.
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY:
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY BOARD,
Respondents,
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
AUTHORITY; LOS ANGELES COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY BOARD,
Real Parties in Interest and Respondents.
Second District Court of Appeal, Division 8 (Case No. B232655)
Certified for Partial Publication
Affirming a Judgment and Order by the Superior Court of the State of
California for the County of Los Angeles (Case No. BS125233)
Honorable Thomas J. McKnew,Jr.
ANSWERBRIEF ON THE MERITS
OFFICE OF THE COUNTY REMY MOOSE MANLEY, LLP
COUNSEL TIFFANY K. WRIGHT, 210060
COUNTY OF LOS ANGELES SABRINA V. TELLER, 215759
JOHN F. KRATTLI, 82149 AMANDAR. BERLIN, 229357
County Counsel 455 Capitol Mall, Suite 210
RONALD W. STAMM,91919 Sacramento, CA 95814
Principle Deputy County Counsel Telephone: (916) 443-2745
One Gateway Plaza Facsimile: (916) 443-9017
Los Angeles, CA 90012
Telephone: (213) 922-2525
Facsimile: (213) 922-2530
Attorneysfor Real Parties in Interest and Respondents
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
AUTHORITY; LOS ANGELES COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY BOARD
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS.........0cceeee seeeseeaeeseesaceeaeeaeceeeaeeeseaeesenaeenieeeaeesatens i
TABLE OF AUTHORITIES 0.0... eecceecsteeeeeeeeeseeseseeseaeeecesseeeseaeeseesseeeaes iii
INTRODUCTION.....cccccscccsccsecseeeeeeeeeeeceeseeescseccsssseesaeenaeeessecaesesaeseseseesateas I
STATEMENTOF ISSUES.....c ce eeeeeeteteeteeetseeseeeseees seseseeaeseeseseseeseeeaseeesenes2
STANDARD OF REVIEW sesssseeeseasesetinssstisee ecenecneeaeeeseaeeaeeaeeseatesseesaeeaes3
ARGUMENT......cccesccsssssessseccrseeceseeseeeeeeceeeceaeecaeeseresaessecesaaeeaessesesseceseesatenees7
A. The use of projected future conditions as a baseline can
yield the most useful information regarding a project’s
impacts and is appropriate when supported by substantial
CVICENCE. oo. eeeeeeeeeeeeesseceeeaneesseeesaceseaeeeecueereceeesatesesesesesnseeeesesseseseaesees 7
1. The CEQA Guidelines and California Supreme Court
precedentestablish that an agency’s selection ofa
baseline is an exercise of the agency’s discretion and
will be upheld if supported by substantial evidence.............. ll
a. An agency’s choice of a baseline is inherently
a factual question, subject to the substantial
evidence standard Of reVieW........ccccceceseseseereeetserenees 14
2. Communitiesfor a Better Environmentdid notreject
the use of a future baseline; the Court should reject
the rigid rule propounded in Sunnyvale West and
Madera Oversightas it conflicts with the Court’s
guidance in Communitiesfor a Better Environment.............20
a. The use of a 2030 baselineis not the
sort of “illusory” or “hypothetical” baseline
this Court rejected in Communitiesfor a Better
ENViIVONMEN..eeceecseeeeenceeeceecestecesenscececeeessueseesessenneseesns24
3. CEQAdoesnot prohibit the use of a projected future |
baseline, nor does the previous case law interpreting
CEQA. vesicseeseseeseseeseneeseeeseeecsesenesaecaecesaseeesceesseesenesiesaseeenenaeetts27
i
TABLE OF CONTENTS
(Continued)
Page(s)
a. The same court that decided Sunnyvale West -
has expressly held that agencies have discretion
to establish a future baseline where that choice
is supported by substantial evidence. 0.0...30
Petitioner fails to cite any substantial evidence to
support its claims that the project may have near-term
Significant impacts. ......c.cccseccecececsesesseeeeecesescsestsateestseeeeseenees33
B. Mitigation Measure TR-4 adequately mitigates the potential
for parking spillover impacts. ........c.ceceeee eee eee tetee tenon taeneey 36
l. Mitigation Measure TR-4 is enforceable and has been
incorporated into the project...eeeeeeccereereeeseeteeeeeeeees 39
2. The Expo Authority did not improperly defer the
formulation Of MitigQation.........ceeecscccesesececseseessseeesteesenees44
3. There is substantial evidence that Mitigation Measure
TR-4 will reduce theimpacts ofparking intrusion in
surrounding neighborhoods. 0.0.0... eecceceeseeeeeeteseeeeeneeeaeesaeeees 50
CONCLUSION..... cc cecceceeesesreeererreee teatsseceeseeaceesanecaesaeeseceescessetstenetatens 53
CERTIFICATE OF WORD COUNT 0... cececceseeseaceeteessaceeteeeeesearterseeeaes 54
ii
TABLE OF AUTHORITIES
California Cases
Page(s)
Al Larson Boat Shop, Inc. v. Bd. ofHarbor Coms.
(1993) 18 Cal.App.4th 729 occeeceeececeseeneeceseeeeneeeeneeenesseesseseeesessresseees 5
Baird v. County ofContra Costa
(1995) 32 Cal.App.4th 1464 ooeccsesesecrecsesseseeaeeseeeaeecssasteeenesenesseenteas 8
Bakersfield Citizensfor Local Control v. City ofBakersfield
(2004) 124 Cal.App.4th 1184oececeeeeesnesseeeceaeeneeseesereseeseseseeserenes 39
Bozung v. Local Agency Formation Commission
(1975) 13 Cal.3d 263 ...cecceccecceesseeeessecsseeeseeeelecsseeeeseseseeeeesectseensseeeeeseeeetes 8
California Native Plant Society v. City ofRancho Cordova
(2009) 172 Cal.App.4th 603 occeeeesesenesseesseeeeesseesneeteesnessetertees 5, 44, 46
Chaparral Greens v. City ofChula Vista
(1996) 50 Cal.App.4th 1134 ooeeecsenecneesneeeessnaeeeeesaeeeeseaseeeseesareeessens 9
Cherry Valley Pass Acres and Neighbors v. City ofBeaumont
(2010) 190 Cal.App.4th 316 oo. eecseseeeseestsesceeeeeatetesereseseseseeeats 18, 19
Citizens ofGoleta Valley v. Board ofSupervisors
(1990) 52 Cal. 3d 553 wee ceeeceeceesseeeseeessecececeecsnnessessaceesesseesseeseneesseeneas 6, 7, 8
Communitiesfor a Better Environmentv. City ofRichmond
(2010) 184 Cal.App.4th 70 occ ccceeeessessesessecereeeeersneeeseeaessaeceneeeeeeaeeeseeaee 48
‘Communitiesfor a Better Environmentv.
South Coast Air Quality Management Dist.
(2010) 48 Cal.4th 310oe11, 15, 18, 21, 22, 23, 24, 27, 28, 32
Dry Creek Citizens Coalition v. County ofT:ulare
(1999) 70 Cal.App.4th 20 ..cccccccsssssssssssesssssssssssveccessssseesessesensessessaseenseseseeseee 9
ili
TABLE OF AUTHORITIES
California Cases —
(Continued)
Page(s)
El Morro Community Assn. v.
California Dept. ofParks and Recreation :
(2004) 122 Cal.App.4th 1341 occeseseseeesecceeeesececneecneeeessateaeeeeees 6, 52
Endangered Habitats League, Inc. v. County ofOrange
(2005) 131 Cal. App. 4th 777 o..ccceeseseesessessesesseetseceesecseesseeeeeeaeeteeearesseeees 49
Environmental Planning and Information Council v.
County ofEl Dorado
(1982) 131 Cal.App.3d 350 oeeeeeesesesseeneerseeeneeseesaeeeeenseeeteeeneesens 19
Fat v. County ofSacramento
(2002) 97 Cal.App.4th 1270 oo... cceesecssesecnesserseeeeeseeseeneeeseeeaceeeenseeneaees 17
Federation ofHillside & Canyon Assns. v. City ofLos Angeles
(2000) 83 Cal.App.4th 1252 ooo.eerecesses eeesaneeereeeee 4,42, 43
Gray v. County ofMadera
(2008) 167 Cal.App.4th 1099 oooeecseeeseeeseeeesseeteeeseeeseaesneeseeesenersees 48
In re Lane
(1962) 58 Cal.2d 99 ooo. ccccseseeessscnesecesseesscsceseeesevaeseaeseatenssesseseaaessaeesseereey 32
Kenney v. Antioch Live Oak SchoolDist.
(1936) 18 Cal.App.2d 226 oo... ceiceecessseessceseeneenerseeneeesessaevaesereraessatsatenees 32
Laurel Heights Improvement Assn. v.
Regents of University ofCalifornia
(1988) 47 Cal. 3d 376 «oe eesesseeseeseeesesteeseesneseenens 3, 6, 7, 8, 12, 42, 48, 52
Lincoln Place Tenants Assn. v. City ofLos Angeles
(2007) 155 Cal.App.4th 425 0. cececeeseseeeessseeseesenesenesseeseesseesssseseaes 4]
Madera Oversight Coalition, Inc. v. County ofMadera
(2011) 199 Cal.App.4th 48 ooo.eeeseeecneeeeeeneeeetesesseesteereeeaes 9, 28, 41
Neighborsfor Smart Rail v. Exposition Metro Line Constr. Auth.
(2012) 205 Cal.App.4th 552 o..eccesesesseesesesereesesnenensssersseeesesenssenessseenees 29
iv
TABLE OF AUTHORITIES
California Cases
(Continued)
Page(s)
Pfeiffer v. City ofSunnyvale
(2011) 200 Cal.App.4th 1552oeeeeeeeeceeeereeeeees 13, 14, 15, 30, 32, 33
Rialto Citizensfor Responsible Growth v. City ofRialto
(2012) 208 Cal. App. 4th 899 ooccescceceeseestecesesseeeeesseeeseeeeessetensesseens 49
Sacramento Old City Assn. v. City Council
(1991) 229 Cal.App.3d LOL] occ cecceeesscceesetsessseenseesesessesseesesceecseeneens 46
San Franciscans Upholding the Downtown Planv.
City and County ofSan Francisco
(2002) 102 Cal.App.4th 656 oe cceccesesseceeceseeeeseeeececesseecneseeseeseatensens 8, 38
San Joaquin Raptor Rescue Center v. County ofMerced
(2007) 149 Cal.App.4th 645 oo. cececsneeceeenereseenresieeesesssessecsressneeaes 17, 48
Santa Clarita Organizationfor Planningthe Environmentv.
County ofLos Angeles
(2007) 157 Cal.App.4th 149 oocccecessneeneceseecteeecseesesessesesseeseeeseesneesaseens 5
Save Our Peninsula Committee v.
Monterey County Bd. ofSupervisors
(2001) 87 CalApp.4th 99 oeceecceessenesteeseesseeesecssesesseseesesesseesaes 4,17, 31
SaveOur Peninsula Monterey County Bd. ofSupervisors
(2001) 87 Cal.App.4th 99 ooeceeeescertseneeeeeeeseesaesesseseeesieseeesseeeeeeaeses 16
Sequoyah Hills Homeowners Assn. v. City ofOakland
(1993) 23 Cal.App.4th 704 occcceceecececseesecssecesecseessecssesessesssesaseesssseeeseeeas 6
State ofCal. v. Super. Ct.
(1990) 222 Cal.App.3d 1416 oeeeecceceeseseteecsecesesseeseestessssessneesesseees 52
Sunnyvale West NeighborhoodAssn. v.
City ofSunnyvale City Council
(2010) 190 Cal.App.4th 1351 oceeeeeeeeeeseneeeeeneeeisseessesceeeneaseeeesneey 9, 28
v
TABLE OF AUTHORITIES
California Cases
(Continued)
Page(s)
Topanga Assn. for a Scenic Community v. County ofLos Angeles
(1974) 11 Cal.3d-506 oo. cccceeccecceseeseceeeeceeeeeeeeeeseeseeesseeecsnaeeesesseesenesenaey 6, 7
Topanga Assn. for a Scenic Community v. County ofLos Angeles
(1989) 214 Cal.App.3d 1348 occeeseseseecseeesseeeeceseesseeeseeseeseresesesseessenes 6
Tracy First v. City ofTracy
(2009) 177 Cal.App.4th 912 ooo. cceesecseesereceeeneeeseeesaeeeseaeesesesseesenseneeaes 5
Vineyard Area Citizens for Responsible Growth, Inc. v.
City ofRancho Cordova (2007) 40 Cal.4th 412wesc4,12, 24, 42
Woodward Park Homeowners Assn. v. City ofFresno
(2007) 150 Cal.App.4th 683 ooo. eeecseeseeseseseeseecnreeeseeeseaeeaseateeesereeeees 19
vi
TABLE OF AUTHORITIES
California Codes
Page(s)
Evidence Code. Section 664 iceeccceceseeceeeees 5, 52
Public Resources Code 21000 et SQ. .....eeecesseeesteeees 1
21003 oooeeeeceeecseseseeeteeesseeeseeens7
21003, subd. (f).....ceeeeeeeeeee7
21060.5 ooo eeececeseesrseeeeseeeees 10
21080, subd. (€)(2)...........00084
21081eeeeeceeeeeseeeeeeeteees 39
21081, subd. (a)(1)........40
21081, subd. (a)(2)........e40
21081.6 ooo eeeseeteesteeeeeees41
21081.6, subd.(b)......... 39, 43
21082.2, subd.(C) .....eee4
21083.1 oe ecececssecsteesssseesseeees 8
211673 eeecceeteeeeeeenes 5, 52
21168 woe. eeeceeesceesteessetessseeens 3
QLLG8.S occ ceeceteeeeeetseeeseeees 3
Public Utilities Code 132615, subd. (a)(1)............. 51
132615. subd. (a)(3)-(4)....... 51
California Regulations
California Code ofRegulations, Title 14,
"CEQA Guidelines" section 15091, subd. (a)(1).......0....40
15091, subd. (a)(2)...........40
15091, subd. (b) ....... eee39
15097, subd. (C) oo...4]
15121, subd. (b) «0...eee7
15125 Leeeeeteeeeeeeeteeenees29
15125, subd. (a) ............ 22, 27
15126.2, subd.(a) 0...27
15126.4, subd. (a)(1)(B) 44, 45
15126.4, subd.(a)(2)..........4.39
15126.4, subd.(b)(3)..... 41, 42
15384, subd. (a)... .ceeeseeeee4
Vii
TABLE OF AUTHORITIES
California Codes
Page(s)
Miscellaneous
16 Cal.Jur.3d (2002) Courts, § 297 oo. cceeseessesceseeeeeeneeeeseesseesesseeenneeaes 32
Remy,et. al., Guide to CEQA (11th ed. 2006) at p. 199...eeeeeeeees 16
Viil
INTRODUCTION
The Expo Phase 2 Project (“Expo Line”) is a much-neededlight rail
transit linethat will serve the Westside of Los Angeles. The Expo Line was
approved by the Exposition Metro Line Construction Authority (“Expo
Authority’) after many years of careful planning in coordination with the
| Los Angeles County Metropolitan Transportation Authority (“Metro”) and
the cities through which the line will traverse (Los Angeles, Santa Monica,
Culver City).
The Expo Lineis part of Metro’s Long Range Transportation Plan
(AR 00234). Metro is the planner, coordinator, designer, builder, and
operator of much ofthe transportation and transit network in Los Angeles
County. Metro therefore has vast experience in planning and analyzing
transit projects, Because of the nature and scale of the types of projects that
Metro plans, builds, and operates, Metro must necessarily look to the future
whenplanning and analyzing projects. Because these projects take years to
plan, fund, and build, they will never operate under the present-day
conditions, or the conditions existing at the time environmental review
under the California Environmental Quality Act (“CEQA”) (Pub.
Resources Code, § 21000 et seq.) commences. Furthermore, the types of
large-scale transit and transportation projects developed by Metro are not
meant to address present-day transit needs. Instead, Metro must look to the
future and plan a transit and transportation network that serves the
1
population and employment growth thatis certain to come. For these
reasons, it is logical and appropriate that agencies like Metro and Expo
Authority would compare a project’s operational impacts against the |
conditions that will exist when the project is expected to be fully
operational. In this case, there is substantial evidence supporting Expo
Authority’s use of conditions in 2030 as the baseline to measure the
Project’s traffic, air quality, and climate change impacts.
Furthermore, having worked with Metro and the cities of Los
Angeles, Culver City, and Santa Monica, to develop parking mitigation,
there is substantial evidence that the proposed mitigation for spillover
parking impacts will reduce any potential impacts to less-than-significant
levels. For these reasons, Expo Authority’s Environmental Impact Report
(“EIR”) for the Expo Line should be upheld.
STATEMENT OF ISSUES
This case presents the following two questions:
1. Whena project is not expected to be completed and
operational for many years, does CEQAprohibit an agency
from measuring operational impacts against the conditions
that will exist when the project is in operation? Stated another
way, does an agency abuseits discretion by comparing a |
project’s operational impacts against the conditions that will
exist when the project is operational?
///
///
///
2. If there is substantial evidence that a mitigation measure will
be implemented by another agency, and that the mitigation
measure will be effective to mitigate the particular impact for
whichit is designed, does an agencyabuseits discretion in
finding that the impact will be mitigated to a less-than-
significant level?
In regard to the first question, whatis not at issue in this litigation is
whether the year 2015 would be a better baseline than 2030 for analyzing
impacts. Prior to project approval and the in the Court ofAppeal, Petitioner
did not argue that 2015 was an appropriate baseline. In fact, in the Court of
Appeal, Petitioner argued only that, as a matter oflaw, the Expo Authority
was prohibited from using any future baseline. Thus, Petitioner has waived
any argumentthat a 2015 baseline — a future baseline — should have been
employedin this case. Furthermore, Petitioner has waived any argument
that use of a 2030 baseline is not supported by substantial evidence.
STANDARD OF REVIEW
In a CEQAcasesuchasthis one, the reviewing court determines
whether the respondent public agency prejudicially abusedits discretion
either by failing to proceed in the manner required by law or becauseits
decision is not supported by substantial evidence. (Laurel Heights
Improvement Assn. v. Regents of University ofCalifornia (1988) 47 Cal. 3d
376, 392 (Laurel Heights I); Pub. Resources Code, §§ 21168, 21168.5.) In
determining whether an agency abusedits discretion, the “court must adjust .
its scrutiny to the nature ofthe alleged defect, depending on whether the
claim is predominantly one of improper procedure or a dispute overthe
facts.” (Vineyard Area Citizensfor Responsible Growth, Inc. v. City of
Rancho Cordova (2007) 40 Cal.4th 412, 435 (Vineyard).) If the dispute is
predominately one of facts, the Court must uphold the agency’s actionsif
they are supported by substantial evidence. (/bid.) “Substantial evidence”
means “enoughrelevant 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.” (CEQA Guidelines, §
15384, subd. (a); see also Pub. Resources Code, §§ 21080, subd. (e)(2),
21082.2, subd. (c).) Unsubstantiated opinion or narrative is not substantial
evidence under CEQA.(Save Our Peninsula Committee. v. Monterey
County Bd. ofSupervisors (2001) 87 Cal.App.4th 99, 122; CEQA
Guidelines, § 15384, subd. (a).) Challenges to the scope of the analysis, the
methodologyfor studying an impact, and the reliability or accuracy ofthe
data present factual issues, so such challenges must be rejected if
substantial evidence supports the agency’s decision as to those matters and
the EIR is notclearly inadequate or unsupported.” (Federation ofHillside
& Canyon Assns. v. City ofLos Angeles (2000) 83 Cal.App.4th 1252, 1259
(Federation).)
Although Petitioner has tried to couch its arguments as questions of
law, subject to de novo review, both issuesraisedin this litigation are
clearly subject to the substantial evidence standard. As set forth below,
4
numerous cases have held that the agency has discretion to establish the
“baseline” for purposes of analysis of impacts. Similarly, Petitioner’s
challenge to the parking mitigation measure boils down to a question of
whether the Expo Authority’s determination that impacts will be reduced to
a less-than-significant level is supported by substantial evidence.
The Court must presumethat the agency complied with the law.
(Evid. Code, § 664; Al Larson Boat Shop, Inc. v. Bd. ofHarbor Coms.
(1993) 18 Cal.App.4th 729, 740 (Al Larson Boat Shop).) An EIR is
presumed adequate (Pub. Resources Code, § 21167.3) and “the party
challenging the EIR has the burden of showing otherwise.” (Santa Clarita
Organizationfor Planning the Environment v. County ofLos Angeles
(2007) 157 Cal.App.4th 149, 158.) Petitioner must show the record contains
no substantial evidence supporting the disputed conclusions.Petitioner
neither carries that burden by pointing only to excerpts of the record
favoring its position nor by “[p]ointing to evidence of a disagreement with
other agencies.” (California Native Plant Society v. City ofRancho Cordova
(2009) 172 Cal.App.4th 603, 626 (CNPS v. Rancho Cordova).) This
approach“is not enough to carry the burden of showing a lack of substantial
evidence to support the City’s finding.” (Zbid.) A petitioner challenging an
EIR “must lay out the evidence favorable to the other side and show whyit
is lacking. Failure to do so is fatal.” (Tracy First v. City ofTracy (2009) 177
Cal.App.4th 912, 934.)
GeeEven so, the Court does not “‘pass upon the correctness’ of the EIR’s
environmental conclusions, but only its sufficiency as an informative
document.” (Citizens ofGoleta Valley v. Board ofSupervisors (1990). 52
Cal. 3d 553, 564 (Goleta IT).) A court must uphold the EIR ““‘if there is any
substantial evidence in the record to support the agency’s decision that the
EIR is adequate and complies with CEQA.” (El Morro Community Assn. v.
California Dept. ofParks and Recreation (2004) 122 Cal.App.4th 1341,
1349 (El Morro).) The Court looks “not for perfection but for adequacy,
completeness, and a good faith effort at full disclosure.” (Sequoyah Hills
Homeowners Assn. v. City ofOakland (1993) 23 Cal.App.4th 704, 712.)
The Court must uphold a decision supported by substantial evidence even if
there is substantial evidence to the contrary. (Laurel Heights I, supra, 47
Cal.3d at pp. 392-393.)
Assuch,in applying the substantial evidence standard, ““‘the
reviewing court must resolve reasonable doubts in favor of the
administrative finding and decision.” (Laurel Heights I, supra, 47 Cal.3d at
p. 393 (quoting Topanga Assn. for a Scenic Community v. County ofLos
Angeles (1974) 11 Cal.3d 506, 514 (Topanga 1)).) The findings of a public
agencymust “be liberally construed to support rather than defeat the
decision under review.” (Topanga Assn. for a Scenic Community v. County
ofLos Angeles (1989) 214 Cal.App.3d 1348, 1356 (Topanga I/).) All
reasonable doubts must be resolvedin favorofthe decision. (Topanga I,
6
supra, 11 Cal.3d at p. 514.) A court may not interfere with the agency’s
discretion regarding the choice of the action to be taken. (See CEQA
Guidelines, § 15121, subd. (b) [“the information in the EIR does not control
the agency’s ultimate discretion on the project”); Goleta IL, supra, 52
Cal.3d at p. 576 [the wisdom of approving a projectis “a delicate task
which requires a balancing ofinterests, is necessarily left to the sound
discretion of local officials and their constituents”].) Accordingly, a court
must defer to the agency’s determination when supported by substantial
~ evidence. (Laurel Heights I, supra, 47 Cal.3d at p. 409.)
ARGUMENT
A. Theuse of projected future conditions as a baseline can yield the
most useful information regarding a project’s impacts and is
appropriate when supported by substantial evidence.
In enacting and interpreting CEQA,both the Legislature andthe
Supreme Court have emphasized that resources expended in the
environmental review process should be directed towards mitigating
adverse environmental impacts, rather than producing uninformative
studies. For example, Public Resources Codesection 21003 declaresthat:
All persons and public agencies. involved in_ the
environmental review process [are] responsible for carrying
out the process in the most efficient, expeditious manner in
order to conserve the available financial, governmental,
physical, and social resources with the objective that those
resources may be better applied toward the mitigation of
actual significant effects on the environment.
(Pub. Resources Code, § 21003, subd.(f).)
7
While highlighting a concern for procedural efficiency, this statutory
language explicitly emphasizesthe importance of mitigating significant
environmental effects. The statute thus suggests that, in the Legislature’s
view, money directed towards actually preventing or reducing significant
environmental damage maybebetter spent than money spentsolely on
whatthis Court has called “generat[ing] paper.” (Goleta IT, supra, 52
Cal.3d 553, 564 [“[t]he purpose of CEQAis not to generate paper, but to
compel governmentat all levels to make decisions with environmental
consequences in mind” (quoting Bozung v. Local Agency Formation
Commission (1975) 13 Cal.3d 263, 283)]; see also Laurel Heights I, supra,
47 Cal.3d at p. 393.)
The Legislature has also emphasized CEQA’s practical side:
It is the intent of the Legislature that courts, consistent with
generally accepted rules of statutory interpretation, shall not
interpret this division or the state guidelines adopted pursuant
to Section 21083 in a manner which imposes procedural or
substantive requirements beyond those explicitly stated in this
division or in the state guidelines.
(Pub. Resources Code, § 21083.1; see also San Franciscans Upholding the
Downtown Plan v. City and County ofSan Francisco (2002) 102
Cal.App.4th 656, 689 (San Franciscans).) Accordingly, the courts have
repeatedly rejected interpretations of CEQA that create more unnecessary
work for the agency but do nothingto protect the environment.(See,e.g.,
Baird y. County ofContra Costa (1995) 32 Cal.App.4th 1464, 1469
8
[“courts are statutorily prohibited from interpreting CEQA ‘in a manner
which imposesprocedural or substantive requirements beyond those
explicitly stated in’ CEQAorits implementing guidelines”]; Chaparral
Greens v. City ofChula Vista (1996) 50 Cal.App.4th 1134, 1145 [rejecting
an expansive interpretation of CEQA“‘in light ofthe legislative admonition
that the courts should not interpret CEQA to impose ‘procedural or
999substantive requirements not explicitly stated in the statutes or
Guidelines]; Dry Creek Citizens Coalition v. County ofTulare (1999) 70
Cal-App.4th 20, 36 [same].)
In the trial court and Court ofAppeal, Petitioner argued that the
Expo Authority violated CEQA by comparing the impacts of the project
against a future baseline. Citing the cases of Sunnyvale West Neighborhood
Assn. v. City ofSunnyvale City Council (2010) 190 Cal.App.4th 1351
(Sunnyvale West) and Madera Oversight Coalition, Inc. v. County of
Madera (2011) 199 Cal.App.4th 48 (Madera Oversight), Petitioner argued
that, as a matter of law, Expo Authority was prohibited from using any
baseline that would exist after the project approval.’ But as discussed
'/ Now,in its Opening Brief on the Merits, Petitioner argues that a future
baseline would be acceptable, as long as that baseline is the opening day of
the project. Petitioner never exhausted its administrative remedies as to this
argument and has waived this argumentby failing to raise it in the courts
below.
below, such a bright-line rule is inappropriate for analyzing the operational
impacts of long-term projects such asthetransit line at issue here.
In this case, using the “existing conditions” as a CEQA baseline
would not generate any information ofpractical value. Insisting on using
the conditions that exist at the time environmental review is commenced
would result in an analysis of impacts based on conditions that will not
actually exist at the time the project is in operation. At the time of
environmental review for the Expo Line, the project wasstill years away
from being fully funded and built, and many years away from being fully
operational. Thus, analyzing such a project’s theoretical operational
impacts on present environmental conditions, as the holding in Sunnyvale
West would require, would not provide the public or decision-makers with
any information about the Expo Line’s impacts on the environment in
whichit will actually operate. (See Pub. Resources Code, § 21060.5
[“Environment” means “the physical conditions that exist within the area
which will be affected by a proposedproject’(italics added).)
~ Sunnyvale West and Madera Oversight represent a departure from a
long line of cases emphasizing realenvironmental analysis over
meaningless environmental review. As applied to major infrastructure
projects, designed to serve the future population, the requirement to
compare operational impacts to existing conditions yields no practical
information.It therefore does not serve CEQA’s purposes ofinformed
10
decision-making and mitigation of environmental impacts. Furthermore,
although the Sunnyvale West court cited this Court’s opinion in
Communitiesfor a Better Environment v. South Coast Air Quality
ManagementDist. (2010) 48 Cal.4th 310 (Communitiesfor a Better
Environment), as the basisfor its prohibition on the use of a future baseline,
Communitiesfor a Better Environment does not support such rule.
1. The CEQA Guidelines and California Supreme Court
precedent establish that an agency’s selection of a baseline
is an exercise of the agency’s discretion and will be upheld
if supported by substantial evidence.
This Court’s decision should be guided fundamentally by the
question of which approach best serves CEQA’s informational purpose. A
rigid insistence on a bright-line rule requiring agencies to use existing
conditions, or time of approval, or even commencementofthe project
underall circumstances forall projects would frequently fail to serve that
purpose. Sucha bright-line rule would force the environmental review for
many projects to ignore reality and instead construct a hypothetical scenario
in which a project that will not be built or be fully operational for many
years is compared to existing conditions. There is no such absolute rule in
CEQAorthe cases interpreting CEQA. Rather, CEQA and the decisions
interpreting CEQA have emphasized the practicality of the statute, and have
rejected attempts to impose requirements that do not provide meaningful
1]
information regarding environmental impacts. As this Court has recently
explained:
The EIR’s function is to ensure that government officials who
decide to build or approve a project do so with a full
understanding of the environmental consequences and,
equally important, that the public is assured those
consequences have been taken into account. (Laurel Heights
I, supra, 47 Cal.3d at pp. 391-392.) For the EIR to serve these
goals it must present information in such a manner that the
foreseeable impacts ofpursuing the project can actually be
understood and weighed, and the public must be given an
adequate opportunity to comment on that presentation before
the decision to go forward is made.
(Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho
Cordova (2007) 40 Cal.4th 412, 449-450 [emphasis added].)
In the case of CEQA review for a major transit project like the Expo
Line, comparing the operational impacts of the project against the
conditions as they exist at the time a notice of preparation (“NOP”)is
released, or the EIR is published, or even when the project is approved,
would provide no practical information. Such projects will not operate
under the conditions existing at the time an NOPor EIRis issued or even
soonafter the project is approved;nor are they designed to. These projects
take many years to construct, and are designed to accommodate future
population, employment, and travel demand. When evaluating such a
project’s operational impacts, it is therefore logical to compare those
impacts against the conditions under which the project will be operating.
12
As discussed below,the holding in Sunnyvale West so heavily relied
upon by Petitioner adds unnecessary procedural obligations to the CEQA
review for such projects. As further discussed below,it also departs from a
long line of cases establishing that agencies have flexibility in establishing
the baseline and that such determinations are subject to the substantial
evidence standard of review. It may be no surprise then, that the Sixth
District Court ofAppeal rather quickly departedfrom the rigid rule it
pronounced in Sunnyvale West and returned a short timelater, in Pfeifferv.
City ofSunnyvale (2011) 200 Cal.App.4th 1552, to the long-held
understanding that such determinations are indeed flexible and should be
afforded substantial deference as long as they are supported by substantial
evidence.
Particularly for long-range transit and transportation planning,it is
usually necessary to rely on future conditions, supported by substantial
evidence demonstrating the reasonable certainty of those conditions, to
provide the most useful information to agency decisionmakers andthe
public about the ultimate effects of a proposed transit project such as the
onein this case. Far from Petitioner’s dismissive characterization of these
conditions as merely “hypothetical”or “illusory”, the record in this case
demonstrates that population growth and concomitant increases in vehicle
traffic and air pollution are certain to occur, andtherefore that the project
would be operating in significantly more congested conditionsat the
13
transportation agencies’ planning horizon in 2030. Furthermore, the record
showsthat all of the future traffic infrastructure improvements assumed in
the analysis are planned and approved,in place, or under construction. (AR
72:10718-19; AR 476:32006, 32079; AR 509:33216, 33233-33234.) As
recognized by the Court of Appeal below,there can be no legitimate
contention that conditions would remain unchanged over the next 20 years
from the time ofinitiation of project analysis, through project approval and
commencementof construction, to full operation of the project. (See, e.g.,
AR 8:002 18-234.) Therefore, using the 2030 baseline was entirely
appropriate for this EIR, as it provided the agencies and the public with a
conservative estimate ofpotential project impacts as measured against that
baseline.
a. An agency’s choice of baseline is inherently a
factual question, subject to the substantial evidence
standard ofreview.
Petitioner’s ever-evolving arguments now paint the selection of a
baseline as a procedural question of law, to which the Court should afford
no déference. While it is not surprising that Petitioner wouldtry to avail
itself of a potentially more favorable review posture, such position is not
supported by long-standing case law,including this Court’s recent decision
in Communitiesfor a Better Environment. This Court should uphold the
reasoning of the Court of Appeal below in this case and the recent decision
of the Sixth District in Pfeiffer, supra, 200 Cal.App.4th 1552, both ofwhich
14
faithfully applied this Court’s holding in Communitiesfor a Better
Environment, stating the obvious point that an agency’s choice of the
proper point in time at whichto set the baseline for comparison of a
project’s potential impacts is a factual determination subject to the
substantial evidence standard of review. * (See Pfeiffer, supra, 200
Cal.App.4th at pp. 1572-1573, relying in large part on Communitiesfor a
Better Environment, supra, 48 Cal.4th at pp. 327-328.)
Until Sunnyvale West was published, there was general agreement
amongst CEQApractitioners based upon the precedent discussed herein
that agencies haddiscretion to establish the proper baseline so long as that
determination was supported by substantial evidence that the baseline
conditions wererealistic, and so long as using something other than the
existing physical conditions did not serve to minimize the impacts ofthe
project. (See Brief ofAmici Curiae Twelve Transportation, Transit, and
Water Agencies In Support of Respondents Exposition Metro Line
Construction Authority et al., Second District Court ofAppeal Case No.
B232655, p. 38.) As explained in one treatise often cited by the courts
“[n] otably, though, by using the word ‘normally,’ the Resources Agency
*/ Although Pfeiffer is extremely relevant here, discussion ofthat case is
noticeably scant in Petitioner’s opening brief. Instead, Petitioner mentions
it only in passing andthentellingly fails to acknowledge that court’s
affirmation that the substantial evidence standard of review applies to the
agency’s selection of a baseline. (Petitioner’s Opening Brief (“OB”), pp.
14-15.)
15
has implicitly recognized that, at least in some circumstances, a “past”or
“future” baseline might be appropriate.” (Remy,et. al., Guide to CEQA
(11th ed. 2006) at p. 199.)
A longline of decisions establishes that determining the baselineis
an inherently factual conclusion. As explained by the court in Save Our
Peninsula Committeev. Monterey County Bd. ofSupervisors (2001) 87
Cal.App.4th 99 (Save Our Peninsula):
[T]he agency has the discretion to resolve factual issues and
to make policy decisions. If the determination of a baseline
condition requires choosing between conflicting expert
opinions or differing methodologies, it is the function of the
agency to make those choices based onall the evidence.
(Id. at p. 120.) The issue in Save Our Peninsula was whetherit was proper
for the Draft EIR and Final EIRto present various levels of groundwater
pumpingasthe potential baseline but to leave the determination of which
baseline to use until the end of the environmental review process. The court
also dealt with what was an obvious attempt to manipulate the baseline to
minimize the project’s impacts. In language cited by this Court in
Communitiesfor a Better Environment, the court in Save Our Peninsula
explained that:
///
///
///
ITI
16
[T]he date for establishing the baseline cannot be rigid one.
Environmental conditions may vary from year to year and in
some cases it is necessary to consider conditions over a range
of time periods. In some cases, conditions closer to the date
the project is approved are more relevant to a determination
whether the project’s impacts will be significant. [Citation.]
For instance, where the issue involved an impact on traffic
levels, the EIR might necessarily take into account the normal
increase in traffic over time. Since the environmental review
process can take a numberof years, traffic levels as of the
time the project is approved may be a more accurate
presentation of the existing baseline against which to measure
the impactofthe project.
(Save Our Peninsula, supra, 87 Cal.App.4th at pp. 125-126.)
The Save Our Peninsula decision thus established the flexibility
agencies have in determining the proper baseline. Nothing in Save Our
Peninsula suggests that this analysis would changeifthe agency had
substantial evidence that a baseline set in the future was the most
appropriate basis for comparing operational impacts.
Fat v. County ofSacramento (2002) 97 Cal.App.4th 1270 (Fat) also ©
confirms thatthe question of the appropriate baseline is subject to the
substantial evidence standard of review. (/d. at p. 1278 [“[t]he central issue
remains whetherthere is substantial evidence to support County’s decision
not to deviate from the norm in selecting [existing conditions] as the
baseline”].) In Fat, the issue was whetherto set the baseline prior to the
time of the initial study. San Joaquin Raptor Rescue Center v. County of
Merced (2007) 149 Cal.App.4th 645, 654 (San Joaquin Raptor), also
17
confirms that the determination of the proper baseline is subject to the
substantial evidence standard of review.
These cases all preceded the Supreme Court’s decision in
Communitiesfor a Better Environment, discussed in greater detail below.If
there was any question as to whetherthe baseline is subj ect to the
substantial evidence standard, this Court had the opportunity to addressit in
the Communitiesfor a Better Environmentdecision. But, the Court upheld
these cases on the issue of the standard of review. (Communitiesfor a
Better Environment, supra, 48 Cal.4th at pp. 320-323, 327-328.) And
because the Court was notaddressing the issue of a projected future
baseline, there is no basis for applying the language in Communitiesfor a
Better Environmentto preclude, as a matter of law, the use of such a
baseline whereit is supported by substantial evidence. —
The factual nature of baseline selection was confirmed even more
recently in Cherry Valley Pass Acres and Neighborsv. City ofBeaumont
(2010) 190 Cal.App.4th 316 (Cherry Valley). In that decision, the court
emphasized that establishing the proper baseline for a comparison of
impacts is inherently 4 factual question, subject to the substantial evidence
standard of review. (/d. at p. 337.) The EIR at issue in Cherry Valley
analyzed the impacts of a specific plan. The owners of the property had an
adjudicated right to pump 1,484 acre-feet of water per year, and there was
evidence that they had pumpedcloseto this amountover the years
18
(although there was no evidence they had ever pumpedthe full amount). In
recent years, agricultural activities had ceased, andin the yearprior to EIR
preparation, the owners had pumpedonly 50 acre-feet. The project
opponents argued the baseline for water supply impacts, which used the
1,484 acre-feet entitlement rather than the conditions during CEQAreview,
was improper.
In rejecting the opponent’s baseline argument, the Cherry Valley
court cited Communitiesfor a Better Environment and Save Our Peninsula
to once again reiterate that the determination of the baseline is an inherently
factual determination, and therefore, the agency has discretion, subject to
review underthe substantial evidence standard, to establish the baseline. In
doing so, the court distinguished cases like Communitiesfor a Better
Environment, Woodward Park Homeowners Assn. v. City ofFresno (2007)
150 Cal.App.4th 683, and Environmental Planning and Information
Council v. County ofEl Dorado (1982) 131 Cal.App.3d 350 (EPIC) in
whichthe courts had struck downthe use of “hypothetical allowable
conditions”as the baseline. The problem in those cases wasthatthe use of
such “hypothetical allowable conditions” was erroneousbecauseit “distorts
a project’s true environmental impacts and mayalso lead to the failure to
considerfeasible alternatives and mitigation measures.” (Cherry Valley,
supra, 190 Cal.App.4th at pp. 339-340.) In each ofthe cases, there was no
evidencethat the baseline used presenteda realistic scenario in which the
19
project’s impacts would occur, and the use of such a hypothetical baseline
minimized the impacts of the project.
Butthat rationale would not apply to a long-term transportation or
transit project such as the Expo Line becausethe use of a projected future
baseline, when supported by substantial evidence, does presenta realistic
scenario in which the project will actually operate. Here it presents a more
realistic scenario for assessing the significance of the Expo Line’s
operational impacts on traffic and air quality than a comparison to
conditions existing at the time of preparation of the EIR, or even
commencement of the project, as lately argued by Petitioner, because
despite its projected 2015 opening date, the Expo Line will take several
years to develop its full ridership capacity and usage, and meanwhile,
population andtraffic congestion are certain to grow, changing the
conditions in which the project will operate for the worse. (AR 8:00218-34;
AR 34:01063; see also AR 72:10738-39.) This is not a situation where the
use of a projected future baseline is merely hypotheticalorillusory; nor
would it serve to minimize impacts.
2. Communitiesfor a Better Environment did not reject the
use of a future baseline; the Court should reject the rigid
rule propounded in Sunnyvale West and Madera Oversight
as it conflicts with the Court’s guidance in Communities
for a Better Environment.
The Court’s opinion in Communitiesfor a Better Environment did
not directly address the question of whetherit is ever appropriate to use a
20
projected future baseline. At issue in Communitiesfor a Better
Environmentwas a permit approved by the South Coast Air Quality
ManagementDistrict (District) for a ConocoPhillips refinery project. The
project involved replacing or modifying components of an existing refinery,
installing new components, and substantially increasing operations of an
existing cogeneration plan and fourboilers. In approving a negative
declaration for the project, the District had used the maximum permitted
operations at the existing refinery as the baseline, despite evidence that the
refinery never operated at such levels. Thus, the District determined that
even undera “worst-case” scenario, the emissions from the project would
not create a significant impact because those emissions would be within
levels previously permitted. (Communitiesfor a Better Environment, supra,
48 Cal.4th at pp. 317-318.) The Court held:
We conclude neither the statute of limitations, nor principles
of vested rights, nor the CEQA case law ‘on which
ConocoPhillips and the District rely justifies employing as an
analytical baseline for a new project the maximum capacity
allowed under prior equipment permits, rather than the
physical conditions actually existing at the time of analysis.
(Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 316.)
The Court wasnot addressing a situation where the lead agency had
used a projected future baseline that was based on projected changesin the
environmentthat are well-supported by substantial evidence, and therefore
did not reject such an approach. Rather, the Court rejected the use of
21
maximum permitted (but never achieved) operations of the existing plant as
the baseline:
[W]e conclude the District’s choice of a baseline for NOx
emissions was inconsistent with CEQA and the CEQA
Guidelines; the District should have looked to the existing
physical conditions, rather than to the maximum permitted
operation ofthe boilers.
(Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 319.)
In reaching its determination, the Court, after citing CEQA
Guidelines, § 15125, subdivision (a), explained that a “long line of Court of
Appeal decisions holds, in similar terms, that the impacts of a proposed
project are ordinarily compared to the actual environmental conditions
existing at the time of CEQA analysis, rather than to allowable conditions
defined by a plan or regulatory framework.” (Communitiesfor a Better
Environment, supra, 48 Cal.4th at p. 321.) The Court went on to discuss
cases in which an agency had used the hypothetical build-out of an existing
plan as the baseline to compare the impacts of a new plan.(/d.at p. 321, fn.
6.) Doing so minimized the impacts of the new plan. The Court also cited
cases in whichpetitioners had argued that the agency shoulduse a baseline
prior to existing conditions to accountfor existing, but potentially illegal or
unpermitted, development. (/d.at p. 321, fn. 7.) |
In the cases cited by the Court (and relied upon by Petitioner here),
the lead agency was either using a hypothetical baseline to minimize the
impacts of the project, or project opponents were advocating for use of a
22
prior baseline to maximize the impact. In each of those cases, the courts
rejected the manipulation ofthe baseline to achieve a purpose inconsistent
with CEQA. The Communitiesfor a Better Environmentdecisionis not
fairly read as rejecting, underall circumstances, the use of a projected
future baseline, particularly when the use of such a baseline yields the most
accurate assessment of impacts and best fulfills the informational purposes
of CEQA.
The Court explained, “[s]imultaneous maximum operation, then,is
not a realistic description of the existing conditions without the [project].”
(Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 322.) This
is the basis for the Court’s statementthat:
An approach using hypothetical allowable conditions as the
baseline results in “illusory” comparisons that “can only
mislead the public as to the reality of the impacts and subvert
full consideration of the actual environmental impacts,” a
result at direct odds with CEQA’s intent.
(Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 322.)
In other words, the problem wasthat the maximum permitted
operations were not a realistic scenario for comparison of environmental
impacts, and the useofthat illusory scenario resulted in the minimization of
impacts.’ The Court further explained:
>/ In contrast to the circumstances in Communitiesfor a Better’
Environment, there is nothing illusory about increases in population and
employment growth that transportation and transit agencies are required to
23
Neither CEQA nor the CEQA Guidelines mandates a
uniform, inflexible rule for determination of the existing
conditions baseline. Rather, an agency enjoys the discretion
to decide, in the first instance, exactly how the existing
physical conditions without the project can morerealistically
be measured, subject to review, as with all CEQA factual
determinations, for support by substantial evidence. (See
Vineyard Area Citizens for Responsible Growth, Inc. v. City
ofRancho Cordova, supra, 40 Cal.4th at p. 435.)
(Communitiesfor a Better Environment, supra, 48 Cal.App.4th at p. 328.)
Petitioner repeatedly cites this passage of Communitiesfor a Better
Environmentto highlight the language regarding “existing physical
conditions,” arguing that the Court therein expressly limited agency
discretion to use a projected future baseline. (OB,at pp. 12, 18.) But as
shownabove,this is simply incorrect. The Court was not deciding whether
it is ever appropriate to use a projected future baseline. The highlighted
language does, however, clearly establish that determination of the proper
baseline is a factual determination, which the agency hasthe discretion to
decide, and is therefore reviewable under the substantial evidence standard.
a. The use of a 2030 baselineis not the sort of
“illusory” or “hypothetical” baseline this Court
rejected in Communitiesfor a Better Environment.
The circumstanceshere are entirely distinguishable from those in
this Court’s decision in Communitiesfor a Better Environment, supra, 48
Cal.4th 310, where this Court recognized the obviousrisk of downplaying
use in their evaluation of transit improvements, and that form the basis for
projections of future environmental conditions.
24
or hiding the proposedaction’s impacts through the use of the truly
hypothetical permitted maximum pollutant emissionsas the analytical
baseline. There is nothing hypothetical or illusory about Metro’s Travel
Demand Model, which formed the bases for the EIR’s 2030 baseline
condition and the analysis of the Expo Line’s impacts to those conditions.
(11 AR 346.) The Metro Travel Demand Model was updated and refined
specifically for use in the study of the Expo Line. (/bid.)
As explained, in the EIR travel forecasting models, such as the
‘Metro Travel Demand Model, are mathematical models that “describe the
relationships between land use and demographics, causes ofpersonaltravel,
and the resultant amount andlocation ofthat travel.” (11 AR 347.) “These |
models are statistically derived from observations of individual travel
choices obtained through extensive surveys of a region’s trip-making
characteristics of travelers and their households.” ([bid.) The Metro Travel
Demand Modelreceives its demographic inputs from the Southern
California Association of Government’s Regional Travel Demand Model."
*/ SCAGis the federally designated Metropolitan Transportation Planning
Organization (“MPO”) for the six-county region that includes the counties
of Imperial, Los Angeles, Orange, Riverside, San Bernardino, and Ventura.
As an MPO, SCAGis required to adopt and periodically update a long-
range transportation plan and a regional transportation plan. (329 AR
27402.) Thus, SCAGis an expert agency in developing population and
transportation demographics.
25
The Metro Travel Demand Modelpredicts future travel demand based upon
several input data items that include:
SCAGforecasts of regional growth inpopulation and
employmentin the region;
SCAGforecast changesin the socio-demographic
characteristics of travelers; and,
Future characteristics of the roadwayandtransit systems
including travel times, costs, and system capacity
reflective of the planned system (2030 conditions). (/bid.)
To estimate the more localized traffic impacts associated with the Expo
Line, intersection travel volume projections were developedusing the
following process:
Development of future base traffic volumes reflecting
2005-2030 backgroundtraffic growth, and changes due to
auto trip reduction and othershifts in traffic as a direct
result of the Expo Line;
Development of additional peak hour auto accesstrips to stations
related to station parking trips and drop-off trips; and,
Estimation oftrip diversions due to cross-street and/or left-turn
closures and their potential impact on the study area intersection
turning movement volumes. (/bid.) _
There is nothing “hypothetical” or “illusory” about the projected
2030. baseline. It was developed based on thetravel demand model of an
expert agency (Metro), which included demographic inputs from another
expert agency (SCAG), and that wasspecifically tailored to address the
impacts of this project. Thus, unlike the “hypothetical” maximum permit
levels used as the baseline in the Communitiesfor a Better Environment
case, the baseline for the Expo Line EIR is based on substantial evidence.
26
3. CEQAdoesnot prohibit the use of a projected future
baseline, nor does the previous case law interpreting
CEQA.
The bright-line rule regarding the use of a projected future baseline
for CEQAreview used by the court in Sunnyvale West prohibits the most
practical method ofidentifying and isolating the significant environmental
effects of complex, long-term planning projects. The CEQA Guidelines
acknowledgethat there is flexibility in determining the baseline condition.
Section 15125, subdivision (a), explains that the baseline will “normally”
consist of conditions existing as of the time of the NOP for an EIR:
An EIR must include a description of the physical
environmental conditionsin the vicinity of the project, as they
exist at the time the notice of preparation is published, or if no
notice of preparation is published, at the time environmental
analysis is commenced, from both a local and regional
perspective. This environmental setting will normally
constitute the baseline physical conditions by which the lead
agency determines whether an impact is significant.
(Emphasis added.)
Similarly, CEQA Guidelines section 15126.2, subdivision (a) providesthat:
In assessing the impact of a proposed project on the
environment, the lead agency should normally limit its
_ examination to changes in the existing physical condition in
the affected area as they exist at the time the notice of
preparation is published, or where no notice of preparation is
published, at the time the environmental analysis is
commenced. (Emphasis added.)
This Court also recognized, in Communitiesfor a Better
Environment, supra, 48 Cal.4th 310,that use of the word “normally”
establishes that agencies haveflexibility in setting the baseline, explaining:
27
Where environmental conditions are expected to change
quickly during the period of environmental review for reasons
other than the proposed project, project effects might
reasonably be compared to predicted conditions at the
expected date of approval, rather than to conditions at the
time analysis is begun.
(48 Cal.4th at p. 328.)
Sunnyvale West interprets this language from Communitiesfor a
Better Environmentas setting an absolute limit on how farin the future the
baseline can be set. The Sixth District Court of Appeal held that, as a matter
of law, a lead agency does not have “carte blancheto select the condition
on some future, post-approval date as the ‘baseline’ so longas it acts
reasonably as shownby substantial evidence.” (Sunnyvale West, supra, 190
Cal.App.4th at p. 1379.) This was so even for a project that wasn’t expected
to be completed for several years, and, therefore, the operational impacts
would not occur until several years later. The Sunnyvale West court
explained “nothing in the law authorizes environmental impacts to be
evaluated only against predicted conditions more than a decade after EIR
certification and project approval.” (Sunnyvale West, supra, 190
Cal.App4th at p. 1380.) Without adding any further analysis, the court in
Madera Oversight supra, 199 Cal.App.4th 98, applied the holdingin
Sunnyvale West to a residential project. But nothing in Communitiesfor a
Better Environmentsuggests this Court established such a limit. Rather, the
Court emphasizedflexibility, supported by substantial evidence.-
28
Petitioner urges the Court to adopt Sunnyvale West’s rigid view of
CEQA Guidelines section 15125 and the term “normally” in a way that
would, under circumstanceslike those for the Expo Line, potentially result
in either meaningless analysis or mask the disclosure of reasonably
foreseeable impacts. Petitioner’s insistence on the use of a baseline set well
prior to the operation ofthe first train carrying people on the Expo Line
would not provide the kind of useful information to the public and agency
decisionmakers that CEQAintends. As the Court of Appeal reasonably
noted, “[a]n analysis of the project’s impacts on anachronistic 2009 traffic
and air quality conditions would rest on the false hypothesis that everything
will be the same 20 yearslater.” (Neighborsfor Smart Rail v. Exposition
Metro Line Constr. Auth. (2012) 205 Cal.App.4th 552; Opinion, p. 15.)
_ Petitioner fails to ever explain what, if anything, the agency’s
decisionmakers would be expected to do with such informationif it were
provided. Certainly it would be wasteful or even impact-causing in and of
itself to require mitigation for theseanachronistic and truly “hypothetical”
impacts disclosed in such a fashion. The fundamental purpose of CEQAis
that agencies disclose the significant impacts of the project under review
andfeasible measures to mitigate the significantimpacts ofthe project.
These fundamental purposesare not advancedby the hollow,paper-
shuffling exercise that Petitioner’s view, if adopted, would require.
29
This result cannot be the one that CEQA’s informational purposeis
intended to create. Rather, the Court should uphold the well-established
interpretation that reserves to agencies their discretion, informed by the
facts, circumstances, and substantial evidence surrounding each individual
project, to select the baseline that best serves CEQA’s purpose.
a. The same courtthat decided Sunnyvale West has
expressly held that agencies have discretion to
establish a future baseline where that choiceis
supported by substantial evidence.
The same court that decided Sunnyvale West quickly clarified that
the determination of the baseline is an inherently factual determination that
the lead agency hasdiscretion to decide, and therefore, the appropriate
standard ofreview is the substantial evidence standard. (Pfeiffer, supra, 200
Cal.App.4th 1552.) In Pfeiffer, the court also upheld the use of a projected
future baseline. The project at issue in Pfeiffer was a hospital expansion.
Thetraffic analysis in the EIR useda traffic analysis methodology
indistinguishable to any material extent from the methodology used for the
Expo Line. The Pfeiffer traffic study used a traffic demand model similar to
the Metro Travel Demand Model used by the Expo Authority. Thetraffic
study used the following traffic data and growth projections: existing
conditions, “background”conditions, project conditions, and cumulative
conditions (year 2020). (Ud. at p. 1571.) The City’s significance
determinations were based on a comparison ofthe project scenario to the
30
“background” conditions. The “background” conditions included
“[e]xisting peak-hour volumes multiplied by a growth factor plustraffic
from approved but not yet constructed developments in the area. Thetraffic
growth factor was developed based on the City of Sunnyvale’s travel
demandforecasting model.” (/bid.) In other words, the EIR’s traffic
baseline was a future condition that included existing traffic and traffic
expected due to projected growth and future development. This is precisely
the methodology reflected in Metro’s Travel Demand Model and applied by
the Expo Authority here. Like the methodology approved in Pfeiffer, the
Expo Line traffic study here started with existing traffic levels in the Expo
Line area, calculated a growth intraffic based on the official population and
employment projections, and then calculated future traffic conditions in
2030 if the Expo Line is notbuilt and if the Expo Lineis built. In this
fashion, the Expo Linetraffic study identified the impacts ofthe project so
that the Expo Authority could then identify and adopt feasible measures to
mitigate the significant traffic impacts ofthe project.
~ In reaching the determination that it was properto use a projected
future baseline, the Pfeiffer court turned to Communitiesfor a Better
Environment and Save Our Peninsula, supra, 87 Cal.App.4th 99, discussed
above, that holds that selecting an appropriate baseline is inherently a
factual determination that agencies have the discretion to make.In rejecting
31
the petitioner’s challenge to thetraffic baseline, the Pfeiffer court
explained:
[A]ppellant’s contention that a traffic baseline is limited to
existing conditions lacks merit because, as we have discussed,
the California Supreme Court has instructed that predicted
conditions may serve as an adequate baseline where
environmental conditions vary. “‘[T]he date for establishing
baseline cannot be a rigid one. Environmental conditions may
vary from year to year and in somecases it is necessary to
consider conditions over a range of timeperiods.’ [Citation].”
(Communities for a Better Environment, supra, 48 Cal.4th at
pp. 327-328.) Here, there was substantial evidence undisputed
by appellants, that traffic conditions in the vicinity of the
[project] could vary from existing conditions due to a
forecast for traffic growth and the construction of already-
approved developments. Moreover, appellants overlook the
fact that the EIR included existing conditions, based on actual
traffic counts, in its analysis oftraffic impacts.
(Pfeiffer, supra, 200 Cal.App.4th at p.1572 [emphasis added].)
The Pfeiffer court went on to explain that “this court acknowledged
in Sunnyvale West that future conditions may beconsidered in determining
a proposed project’s impacts on the environment.” (Pfeiffer, supra, 200
Cal.App.4th at p. 1573.) Because Pfeiffer was issued after Sunnyvale West,
Pfeiffer should be persuasive, rather than Sunnyvale West. “As a general
rule, where there are two or moreconflicting decisions rendered by a court
or by courts of equal dignity the decision last rendered should prevail.” (16
Cal.Jur.3d (2002) Courts, § 297; Kenney v. Antioch Live Oak SchoolDist.
(1936) 18 Cal.App.2d 226, 231; In re Lane (1962) 58 Cal.2d 99, 105 [“It is
an established rule of law that a later decision overrules prior decisions
32
which conflict with it whether such prior decisions are mentioned and
commented uponor not.”].)
The Pfeiffer court distinguished Sunnyvale West on the basis that in
Pfeiffer, “the traffic baselines included in the BIR were notlimited to
project traffic conditions in the year 2020, but also included existing
conditions and thetraffic growth anticipated from approved but notyet
constructed developments.” (Pfeiffer, supra, 200 Cal.App.4th at p. 1573.)
That rationale would support the EIR in this case, where the EIR set forth
the existing traffic conditions and then used modeling of expected growth
in traffic from population and employmentprojections to establish the 2030
baseline for the analysis of the project’s operational impacts related to
traffic and air quality. (See AR 3:00017; AR 11:00336-45, 00353-54; AR
72:10737-40 [Performance Measures for Current Year and Project
Alternatives for Year 2030], 10748-49 [LOS E/F Intersections for Current
| and Year 2030 No-Build Alternative]; AR 13:00495-510, 00515-18 [air
quality analysis]; AR 59:08294-95, 08310, 08391, 08406-09 [Existing
Conditions], 08410-13 [No Build Conditions 2030], 08422-25 [Project
2030 Conditions], 08439-58 [Expo Construction 201 1-2013].)
4, Petitioner fails to cite any substantial evidence to support
its claims that the project may have near-term significant
impacts.
Petitioner previously argued, based on the Sunnyvale West and
Madera Oversightcases, that “an agency has nodiscretionto select a
33
future, post-approval environmental baseline.” (Appellate Reply Brief of
Neighbors for Smart Rail, p. 11.) After that contention was soundly rejected
by the appellate court below, Petitioner now changescourse and argues,”
that the proper baseline can beset no later than the near-future — 2015.
(e.g., OB, p. 29.)
In light of Petitioner’s refusal to adopt a consistent view ofthe
proper baseline the Expo Authority should have used, as well as
Petitioner’s failure to exhaust administrative remedies and provide evidence
to the agency during its review process,it is not surprising that Petitioner
can cite no substantial evidence supporting its theory that the agency’s
choice of a 2030 baseline somehowobscured a slew ofinterim significant
impacts. Petitioner’s assertions in this regard rely on nothing morethanits
own speculation and cynical assumptions, none ofwhich are supported by
the actual evidence in the record. For example, Petitioner spins a theory
unsupported by any citations to the record opining (and impliedly imputing
the EIRat hand) that “long range forecasts,” prepared using “opaque
> / As noted by the Court of Appealin its opinion below (fn. 7) and as
further briefed in detail in Respondents Exposition Metro Line
Construction Authority et al.’s Answer Brief on the Merits, Petitioner failed
to exhaust administrative remedies regarding this specific baseline
argument. In fact, during the administrative process, Petitioner urged the
Expo Authority to use a 2035 baseline, instead of 2030. (AR 727:46961-
62.) Petitioner’s position has therefore evolved from urging the Expo
Authority to base its impacts assessment on conditions even farther into the
future, to insisting on an existing conditions baseline, to its apparent current
position that a near-term operations baseline is the proper choice.
34
mathematical models that are subject to potential manipulation by ‘experts’
to support a pre-determined conclusion,” are “inherently less reliable.”
(OB,pp. 18-19.)
Petitioner further alleges that allowing the use of future baselines
would encourage “gamesmanship” by unscrupulous. project proponents.
(OB,p. 18, fn. 3.) Tellingly, however, Petitioner cites to no evidencein this
record challenging the long-range forecasts developed bythelocal, regional
and state transportation andair quality management agencies indicating
that, due to increases in population and employment,traffic congestion and
resulting air emissions will increase in the project area. (See, e.g., AR
8:00218-234.) The EIR disclosed, for example, that the numberofstudy
area intersections operating at undesirable levels of congestion (with or
without the project) would increase over the 20-year timeframe between the
time of review to 2030. (AR 8:00233; see also AR 72: 10738-10739.)
Petitioner certainly cites to no evidence suggesting that, by basing
assessment ofthe project’s traffic and air quality impacts on the conditions
in the agencies’ accepted planning horizon, the EIR somehow minimized or
disguised the magnitude of the Expo Line’s impacts in the interim. Indeed,
Petitioner cannot cite or impute such conclusions, because as the Expo Line
is aregional transit system designed to gradually reduce people’s reliance
on cars and buses,it will reduce vehicle miles traveled and resulting air
emissions, however incrementally. (AR 11:00353; AR 59:8303.) Thereis
35
no evidence in the record indicating or supporting an inference that the
project’s operation would cause any ofthe study intersections or regional
air quality to get worse, either in the near or long term.°
In summary, CEQA allows an agencyto establish a future baseline if
that determinationis supported by substantial evidence. Here, the Expo
Authority’s use of a 2030 baseline was well reasoned and supported by
substantial evidence. While there are two outlier cases (Sunnyvale West and
Madera Oversight) that purport to prohibit the use of a future baseline, the
case law hassince evolved, and the courts appear to be moving towards an
agreement that future conditions can serve as a baseline for analysis of
impacts if supported by substantial evidence. Nothing in this Court’s case
law is to the contrary. For these reasons, the Court should confirm that the
Expo Authority’s use of a 2030 baseline for the analysis oftraffic and air
quality impacts was appropriate under CEQA.
B. Mitigation Measure TR-4 adequately mitigates the potential for
parkingspillover impacts.
The Expo Line EIR took a very conservative approach to analyzing
parking impacts. Even though parking impacts need not be considered
° / Furthermore, Petitioner’s complaint that the models projecting future
conditions are nothing but “opaque mathematical models” subject to
“manipulation” is a non-sequitur because those very same models are used
to predict the impacts of the project. This is true for probably every
moderate- to large-scale project analyzed under CEQA,wheretraffic and
air quality impacts are determined by complex computer modeling
performed by experts.
36
significant environmental impacts under CEQA,the EIR analyzed whether
the project would “cause parking intrusion into adjacent neighborhoodsor _
commercial areas where the demandfor parking at a station exceeds the
proposed parking lot capacity.” (11 AR 00411.) Because there is a potential
for station parking to spillover into adjacent neighborhoods, the Expo
Authority — in consultation with Metro and the local agencies — adopted
Mitigation Measure (“MM”) TR-4. That measure requires:
In the quarter mile area surrounding each station where
spillover parking is anticipated, a program shall be
established to monitor the on-street parking activity in the
area prior to the opening of service and shall monitor the
availability of parking monthly for six months following the
opening of service. If a parking shortage is determined to
have occurred (i.e, existing parking space utilization
increases to 100 percent) due to the parting activity of the
LRT patrons, Metro shall work with the appropriate local
jurisdiction and affected communities to assess the need for
and specific elements of a permit parking program for the
impacted neighborhoods. The guidelines established by each
local jurisdiction for the assessment of permit parking
programs and the development of community consensus on
the details of the permit program shall be followed. Metro
shall reimburse the local jurisdictions for the costs associated
with developing the local permit parking programs within
one-quarter mile of the stations and for the costs ofthe signs.
posted in the neighborhoods. Metro will not be responsible
for the costs of permits for residents desiring to park on the
streets in the permit districts. For those locations where
station spillover parking cannot be addressed through
implementation of a permit program, alternative mitigation
options include time-restricted, metered, or shared parking
arrangements. Metro will work with the local jurisdictions to
determine which option(s) to implement. (11 AR 00413-414.)
37
Asan initial matter, there is no statutory or case authority requiring
an EIR to identify specific measures to mitigate an anticipated shortfall in
parking availability because the social inconvenience of having to search
for scarce parking spaces is not an environmental impact. (San
Franciscans, supra, 102 Cal. App. 4th at p. 697.) Nevertheless, the
Authority endeavored to mitigate this potential social impact. Adding more
parking has environmental impacts: the Authority would either have to
purchase moreproperty for surface parking, which could have land use
impacts, or provide structured parking. (34 AR 01186.) Therefore, to
minimize the potentially significant adverse impacts resulting from a
shortage of parking, the Authority adopted MM TR-4. (3 AR 00054-55; 11
AR 00413-14.)
Petitioner claims that MM TR-4 is inadequate as a matter of law and
constitutes impermissible deferral of the formulation of mitigation. The
Court ofAppeal correctly held that MM TR-4 is adequate and appropriate
because it commits Metro to mitigating the impact andsets a specific
performancestandard. (Opinion, pp. 33-34.) The Court of Appeal also
correctly determined there is substantial evidence the measure will be
effective at mitigating the impact becauseit addresses the impactat issue
(intrusion into neighborhoods) and because neighboring “residents will
havestreet parking.” (/bid.)
///
38
1. Mitigation Measure TR-4 is enforceable and has been
incorporated into the project.
Prior to approving a project that has the potential to result in one or
more significant effects, CEQA requires the agency to find that the
mitigation measures proposed to mitigate such impacts are required in, or
incorporatedinto, the project; or that the measures are the responsibility of
another agency and have been,or can and should be, adopted by the other
agency; or that mitigation is infeasible and overriding considerations
outweigh the significant environmental effects. (Pub. Resources Code,§ |
21081; Guidelines, § 15091, subd. (b).) CEQAalso requires that a public
agency shall provide that measures to mitigate or avoid significant effects
on the environment are fully enforceable through permit conditions,
agreements, or other measures. (Pub. Resources Code, § 21081.6, subd.
(b); see also CEQA Guidelines, § 15126.4, subd. (a)(2).) In this case, the
record contains substantial evidence that the Authority’s findings made
with respect to MM TR-4 were appropriate and that MM TR-4 is
enforceable. (Bakersfield Citizensfor Local Controlv. City ofBakersfield
(2004) 124 Cal.App.4th 1184, 1198 {substantial evidence standardis
applied to conclusions, findings, and determinations].)
MM TR-4 wasexpressly incorporated into the Project through the
Resolution of Approval, the adopted CEQA Findings of Fact, and the
adopted Mitigation Monitoring and Reporting Program (MMRP). (3 AR
39
00009, 00054-55, 00113.) As MM TR-4obligates the Expo Authority and
Metro to monitor the parking and, if parking exceeds 100-percent
utilization of available parking spaces, obligates Metro to fund and
implement a parking managementprogram, the Expo Authority adopted the
finding consistent with Public Resources Code Section 21081, subdivision
(a)(1), and CEQA Guidelines Section 15091, subdivision (a)(1) (allowing a
finding that “changesor alterations have been required in, or incorporated
into, the project, which avoid or substantially lessen the significant
environmental effect as identified in the final EIR”). (3 AR 00015, 00054.)
But because Metro must work with affected jurisdictions to implementthe
parking management program under MM TR-4, the Expo Authority also
made a finding that, consistent with Public Resources Code Section 21081,
subdivision (a)(2) and CEQA Guidelines Section 15091, subdivision (a)(2),
“such changesor alterations are within the responsibility of another public
agency” and “can and should be adopted by such other agency.” (Ibid.)'
MM TR-4is also fully enforceable because it was adoptedas part of
the MMRP for the Expo Line. (3 AR 00009, 00113.) The intent of an
MMRP isto prescribe and enforce a meansfor properly and successfully
implementing the mitigation measures identified within the EIR for the
’/ Petitioner incorrectly claims that the Authority did not make such a
finding consistent with Public Resources Code Section 21081, subdivision
(a)(2). (OB,p. 40, fn. 19.)
40
project. (Pub. Resources Code, § 21081.6; CEQA Guidelines, § 15097,
subd.(c).) As such, this adopted MMRP prescribes the monitoring,
implementing, and enforcementresponsibility and the schedule for
ensuring implementation and compliance with the mitigation measures.
(Ibid.) As MM TR-4 is drafted in mandatory language and included in the
adopted MMRP,the Expo Authority and Metro are /egally required to
monitor the parking and, if parking exceeds 100-percent utilization of
available parking spaces, Metro is legally required to fund and implementa
parking management program in cooperation with the agencies having
jurisdiction over parking management. (See Lincoln Place Tenants Assn. v.
City ofLos Angeles (2007) 155 Cal.App.4th 45, 452-454 [mitigation, upon
adoption, becomes binding obligation of agency].)
Petitioner initially argues that this Court’s review ofMM TR-4
“presents a question of law subject to independentreview.” (OB,p. 36,
citing Madera Oversight, supra, 199 Cal.App.4th 48.) In Madera
Oversight, however, the issue raised was a question of law becauseit
required the court to interpret CEQA Guidelines section 15126.4,
subdivision (b)(3) to determine whether the methods for accomplishing
“preservation in place” were factors that must be included in an EIR’s
discussion of mitigation measures for impacts to historical resources of an
archaeological nature. (Madera Oversight, supra, 199 Cal.App.4th at p.
85.) In other words,the court resorted to reviewing andinterpreting the
4]
language ofCEQA Guidelines section 15126.4, subdivision (b)(3) to
determine whether the agency had failed to undertake an obligation
required by CEQA.
Here, in contrast, as discussed above,the Authority has complied
with its CEQAobligations with respect to MM TR-4. The Authority
adopted the mitigation measure, adopted an MMRP,and adopted CEQA
Findings of Fact. (3 AR 00009, 00054-55, 00113.) As such, the only
question before this Court is whether the Authority’s finding that MM TR-4
would reduce spillover parking impacts to a less-than-significant levelis
supported by substantial evidence. (See Laurel Heights IL, supra, 47 Cal.3d
at p. 407 [courts will uphold mitigation measures against attacks based on
their alleged inadequacy where substantial evidence supports the agency’s
conclusion that the measures will be effective]; Vineyard, supra, 40 Cal.4th
at p. 435 [substantial evidence standard applies to factual disputes over
“whether adverse effects have been mitigated or could be better
mitigated”].)
"After first asserting that the Court’s review ofMM TR-4 presents a
question of law, subject to independentreview, Petitioner implicitly
concedesthat the substantial evidence standard applies when discussing the
Federation case (supra, 83 Cal.App.4th 1252). (OB,p. 37.) Furthermore, |
the Federation case does not support Petitioner’s argument that MM TR-4
is not enforceable.
42
The court in Federation explained that CEQArequires the agency to
find, based on substantial evidence, that mitigation measures are “required
in, or incorporated into, the project.” Ud. at p. 1261.) Petitioner here argues
that because MM TR-4 requires Metro to work with local jurisdictions to
implement the second prong of the mitigation measure (implementation of
parking management programs), there is no evidencein the record that MM
TR-4 was “required or incorporated into the Project in a mannerthat
ensures[its] implementation, or that such mitigation is fully enforceable.”
(OB,p. 37, citing Federation, supra, 83 Cal.App.4th 1252.) Federation is
inapposite. There, the court held that certain transportation mitigation
measures were inadequate because the City relied on a documentthat
mentioned the possibility of such measures but did not requiretheir
implementation. (/d. at pp. 1255-1256, 1261.) In fact, the City had
acknowledged “great uncertainty” as to whether the mitigation measures
would be funded or implemented. (/d. at p. 1261.) As such, “[a]lthough the
city adopted the mitigation measures,it did not require that they be
implemented as a condition of the development allowed underthe [project]
and made noprovision to ensure that they will actually be implementedor
‘fully enforceable’.” (/bid., citing Pub. Resources Code, § 21081.6, subd.
(b).) Here, as discussed above, substantial evidence in the record supports a
conclusion that mitigation measure MM TR-4 wasincorporated into the
Project andis fully enforceable.
43
2. The Expo Authority did not improperly defer the
formulation of mitigation.
The CEQA Guidelines explain that formulation of mitigation
measures should not be deferred until some future time, after project
approval. (CEQA Guidelines, § 15126.4, subd. (a)(1)(B).) At the same
time, the Guidelines recognize that mitigation measures may specify
performance standards which would mitigate the significant effect of the
project and which may be accomplished in more than one specified way.
(Ibid.) Thus, if the agency has identified one or more mitigation measures
and has committed to mitigating the impact those measures address, then
the principles forbidding improper deferral of mitigation are not implicated.
(CNPS v. Rancho Cordova, supra, 172 Cal.App.4th at p. 623.)
Here, the formulation of the measures to mitigate the Project’s
potential spillover parking impacts has not been improperly deferred until
somefuture time after proj ect approval. Rather, MM TR-4sets forth the
specific parking management measures that could be implemented to
mitigate thespillover parking impact: parking permit programs, time-
restricted parking, metered parking, or shared parking. (11 AR 00413-414.)
But because the parking analysis determined that there would not be a
spillover parking impact on opening day, and because some station areas
that do not have residential permit parking districts or time-restricted on-
44
street parking ® could eventually be impacted by spillover parking, MM
TR-4 requires Metro to “monitor the on-street parking activity in the area
prior to the opening of service and...monitor the availability of parking
monthly for six months following the opening of service.” (11 AR 00413;
72 AR 10793-95.) If, during the six months following the opening of
service, Metro determinesthat the existing parking spaceutilization has
increased to 100 percent, and, therefore, a parking shortage has occurred,
Metro is required to fund and implement one or moreofthe parking
management measures set forth in MM TR-4 in cooperation with the
agencies having jurisdiction over parking management. (11 AR 00413-
414.) Substantial evidence in the record, moreover, showsthat such parking
management programswill be effective at reducing the impact. (11 AR
00413 [noting residential permit parking district and metered on-street
parking already exists in somestation areas which reduces the impact of
spillover parking].)
MM TR-4 commits the Expo Authority and Metro to a specific
performancestandard. The use ofperformance standards allows an agency
to commit to mitigating an impact, but defer formulation of precise
mitigation measures to some future time. (See CEQA Guidelines, §
15126.4, subd. (a)(1)(B) [“measures may specify performance standards
*/ For example, south of the Expo/WestwoodStation, south of the
Expo/Sepulveda Station, and south of the Expo/BundyStation.
45
which would mitigate the significant effect of the project and which may be
accomplished in more than one specified way”’].) As explained in CNPS vy.
Rancho Cordova,“when a public agency has evaluated the potentially
significant impacts of a project and has identified measuresthat will
mitigate those impacts, the agency does not have to commit to any
particular mitigation measure in the EIR, as long as it commits to
mitigating the significant impacts of the project.” (CNPS v. Rancho
Cordova supra, 172 Cal.App.4th at p. 621, citing Sacramento Old City
Assn. v. City Council (1991) 229 Cal.App.3d 1011 (SOCA).) In SOCA,
supra, the court upheld as adequate a mitigation measure to meet a
performance standard of ninety percent parking usage based onthecity’s
commitment to employ one or more mitigation measures it found to be
effective at reducing parking impacts. (229 Cal.App.3d at pp. 1021, 1035.) °
” / Petitioner claimsthat the present case is distinguishable from SOCA
becausein that case the lead agency had committed itse/fto mitigating the
impacts ofparking andtraffic, had already approved funds for a major
study of downtowntransportation and each of the measures identified in the
EIR were within the lead agency’s authority to implement. (OB,pp. 43-44
citing SOCA, supra, 229 Cal.App.3d 1029-1030.) But nearly the same
circumstancesexist in this case. As discussed above, the Authority and
Metro have committed themselves to monitoring parking utilization to
determine if an impact will result, have devised measures that can be
implemented to mitigate an impact resulting from 100-percentutilization of
existing parking and have committed to fund such measures. Moreover,
evidence in the record supports a finding that the measuresare effective and
will be implemented by the jurisdictions affected by the spillover parking
impact. (See Section B.3,infra.)
46
Consistent with the requirements set forth above, MM TR-4
commits to a specific performance standard: reducing existing parking
space utilization to less than 100 percent. Moreover, MM TR-4setsforth
the specific measures that can be implementedto satisfy thiscriterion.
Underthis standard, if Metro’s monitoring reveals that existing parking
space utilization has reached 100 percent, Metro is required to fund and
implement a parking management program in cooperation with the
agencies having jurisdiction over parking managementin order to reduce
parking space utilization to below 100 percent. (11 AR 00413-414.) The
parking management program could include a parking permit program or
other mitigation options such as time-restricted, metered, or shared parking
arrangements in the event a parking permit program is not possible. (11 AR
_ 00413-414.) The EIR considers the permanentloss of existing on-street
parking spacesthat had been consistently utilized to meet the parking
demandsofnearby land uses to be an impactifthere is no nearby alternate
off-street or on-street parking. (11 AR 00351.) In other words, no
significant impactresults unless the Expo Line causes 100-percent
utilization of existing parking. Therefore, reducing parking spaceutilization
below 100 percent with the identified parking measures would reducethis
impactto a less-than-significant level, as noted in the EIR. (11 AR 00414.)
As discussed below,substantial evidence supports this conclusion.
47
Contrary to Petitioner’s assertion, MM TR-4 does not “merely
state[] a ‘generalized goal’ of mitigating a significant environmental
effect.” As such, San Joaquin Raptor, supra, 149 Cal.App.4th at >. 670,
Communitiesfor a Better Environmentv. | City ofRichmond (2010) 184
Cal.App.4th 70, 93 (City ofRichmond), and Gray v. County ofMadera
(2008) 167 Cal.App.4th 1099, 1119 (Gray), are inapposite and Petitioner’s
reliance on them is misplaced. Furthermore,in those cases, though the
courts took issue with the “generalized goals” set forth as the performance
standards, the larger issue indicating impermissible deferral was that the
agency failed to either (1) identify any potential mitigation measures that
might be incorporated in the future (e.g., San Joaquin Raptor) or (2) if such
measures were identified, show how such measures could feasibly be
implemented to meetthe goal(e.g., City ofRichmond and Gray). Here,
MM TR-4doesnot suffer from the same defects.
The performance standard set forth in MM TR-4is, therefore, akin
to the performancestandard for the noise mitigation upheld by this Court in
Laurel Heights ImprovementAssn. v. Regents of University ofCalifornia
(1988) 47 Cal.3d 376, 418. In that case, the EIR set forth daytime noise
mitigation which utilized the city’s noise ordinance as a performance
standard for design of mechanical equipment. The mitigation required that
equipment design would be reviewedby a qualified acoustical engineer for
compliance with the noise standards. If the calculated noise from the fan
48
exceeded the standards, specific noise control treatments including fan
silencers, barrier walls, or baffled enclosures will then be evaluated for the
design ofthe fan to reducethe noise below the city noise standards. This
Court held this mitigation was sufficient. Similarly, MM TR-4 requires
Metro to fund and implement parking management measuresin the event
parking utilization reaches 100 percent in order to reduce parking
utilization below the performance standard of 100 percent. '°
In sum, the Expo Authority and Metro havesatisfied their duty to
mitigate the potentially significant impact relating to spillover parking. MM
TR-4 sets forth specific parking management measuresthat can be
implementedin the future in the event parking utilization reaches 100
percent. (11 AR 00413-414.) Substantial evidence in the record supports a
finding that such measures have been incorporated into the project, are
' 7 See also Endangered Habitats League, Inc. v. County ofOrange (2005)
131 Cal. App. 4th 777, 794 [mitigation measure for gnatcatcher habitat
found not to constitute impermissible deferral where, though the impact
would be addressed sometime in the future, the EIR set out several
possibilities for mitigating the impact]; Rialto Citizensfor Responsible
Growth y. City ofRialto (2012) 208 Cal. App. 4th 899, 945-947 [where no
special status species had been identified on site during surveys, mitigation
requiring preconstruction surveys for five species with potential to occur on
site and consultation with state and federal wildlife agencies if species were
identified constituted sufficient mitigation, though the lead agency had not
mandated any particular mitigation ratio or performance standards].) So too
here, the Authority has a plan to implement and fund parking management
measures in the event parking utilization reaches 100-percentutilization
within six months of opening day.
49
enforceable, and will be effective, as described below. (3 AR 00009,
00054-55, 00113; 11 AR 00413-414.)
3. There is substantial evidence that Mitigation Measure
TR-4 will reduce the impacts of parking intrusion in
surrounding neighborhoods.
Substantial evidence supports a conclusion that mitigation measure
MM TR-4 will, if needed, reduce the spillover impact to a less-than-
significant level. The measure directs the Expo Authority and Metro to
implement a program to monitor parking availability monthly for six
months following the opening of services, and compliance with such an
obligation is within their authority and control. (3 AR 00113.) In the event
this monitoring indicates that parking utilization has reached 100 percent,
Metro is required to work with the affected jurisdictions (of which there are
potentially only three: Los Angeles, Culver City, and Santa Monica) to
implementa parking permit program oralternative mitigation options
(time-restricted, metered, or shared parking arrangements). (3 AR 00113.)
Again, Metro has the authority and control to implement this requirement in
coordination with affected jurisdictions. (3 AR 00113.)
While Metro cannotultimately force these affected jurisdictions to
implement the parking measures, it is clear fromthe administrative record
that Metro and the Expo Authority already have a workingrelationship
with those local agencies that would be affected by station spillover parking
and that such agencies have reviewed and approvedofthe obligations
50
placed on them under MM TR-4.Indeed, membersofthe three cities’ city
councils sit on Expo’s Board. (Pub. Utilities Code, § 132615, subds. (a)(1),
(3)-(4).) And the FEIR expressly states that revisions to MM TR-4 for the
Project in the FEIR which addedthe alternative mitigation options(time-
restricted, metered, or shared parking arrangements) were devised in
consultation with the potentially affected local agencies. (11 AR 00413,
00331.) Moreover, to ensure implementation, Metro has agreed to |
reimburse local jurisdictions for the costs associated with implementing
permit programs. (3 AR 00113.) The administrative record also
demonstrates that the parking measures in MM TR-4 are the types of
measuresthat these jurisdictions have implementedin the past. The City of
Los Angeles has previously adopted neighborhood parking permit
programs to minimize potential spillover impacts in several neighborhoods
near the Project. (11 AR 00413 [noting existing permit parking district
north of the Expo/WestwoodStation]; 72 AR 10795.) Metered on-street
parking also already exists in some station areas which reduces the impact
of spillover parking. (11 AR 00413 [noting metered on-street parking near
Colorado/17th Street and Colorado/4th Street Stations].) A mitigation
measure similar to MM TR-4 wasalso adopted for Phase 1 of the Expo
Line. (739 AR 48431.)
Underthe substantial evidence standard of review, Petitioner bears
the burden to show thatthe three jurisdictions in the Expo Line area that
51
might potentially be affected by spillover parking impacts (Los Angeles,
Culver City, Santa Monica) will fail to cooperate with the Authority in the
implementation ofMM TR-4 if the required monitoring reveals a
significant impact. (Evid. Code, § 664; State ofCal. v. Super. Ct. (1990)
222 Cal.App.3d 1416, 1419 [under CEQA,an EIR is presumed adequate
(Pub. Resources Code, § 21167.3), and the plaintiff in a CEQAaction has
the burden ofproving otherwise]; E/ Morro, supra, 122 Cal.App.4th at p.
1351 [the courts must presume that an agency will carry outits obligations
in accordance with the law; sheer speculation cannot carry petitioner's
burden of proving otherwise].) Given the evidenceofthe affected
jurisdictions’ participation in composingthe final version ofMM TR-4 and
the evidence of approved neighborhood parking permit programs on the
Westside, the Second District correctly concluded that MM TR-4is
supported by substantial evidence, and refused to assume “that simply
because the Expo Authority cannot require a local jurisdiction to adopt a
permit program, the mitigation measure is inadequate.” (Opinion,at p. 34,
originalitalics; see Laurel Heights I, supra, 47 Cal.3d 376, 407 [courts will
uphold mitigation measures against attacks based on their alleged
inadequacy where substantial evidence supports the agency’s conclusion
that the measureswill be effective.].)
In summary, MM TR-4 wasadopted as part of the Expo Line
approval, andit is an enforceable measurethat will reduce the intrusion of
52
spillover parking into adjacent neighborhoods. Thereis substantial
evidence that the mitigation will be effective to reduce the impact to a less-
than-significant level, and therefore, the Expo Authorty’s conclusions
should be upheld.
CONCLUSION
Based on substantial evidence, the Expo Authority appropriately
exercised its discretion to use a baseline set in the future, when the Expo
Line will be fully operational. Furthermore, substantial evidence supports
the Expo Authority’s conclusion that parking spillover impacts will be
mitigated to a less-than-significant level. For these reasons, the Second
District’s holdings should be affirmed.
Respectfully,
Dated: October 9, 2012 REMY MOOSE MANLEY,LLP
By:
Tiffany K. Wright
Attorneys for Real Parties in Interest and
Respondents
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION AUTHORITY;
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION AUTHORITY
BOARD
53
CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, Rule 8.204(c)(1)
I, Tiffany K. Wright, declare as follows:
l. I am an attorney at law duly licensed to practice before the courts of.
the State of California, and am the attorney ofrecord for the Real
Parties in Interests and Respondents in this action.
California Rules of Court, rule 8.204(c)(1), states that briefs
produced on a computer must not exceed 14,000 words, including
footnotes.
This Answer Brief on the Merits was produced on a computer using
a word processing program. This AnswerBrief on the Merits
consists of 12,630 words, including footnotes but excluding the
caption page, tables andthis certificate, as counted by the word
processing program.
Dated: October 9, 2012 REMY MOOSE MANLEY, LLP
By:
Tiffany K. Wright
Attorneys for Real Parties in Interest and
Respondents
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION AUTHORITY;
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION AUTHORITY
BOARD
54
Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, etal.,
California Supreme Court Case No. S202828
(Second District Court of Appeal, Division Eight, Case No. BS232655;
Los Angeles County Superior Court Case No. BS 125233)
PROOF OF SERVICE
I am a citizen of the United States, employed in the City and County
of Sacramento. My business address is 455 Capitol Mall, Suite 210,
Sacramento, California 95814. I am over the age of 18 years and not a party
to the above-entitled action.
I am familiar with Remy, Thomas, Moose and Manley, LLP's
practice whereby the mail is sealed, given the appropriate postage and
placed in a designated mail collection area. Each day's mail is collected and
deposited in a U.S. mailbox after the close of each day's business.
On October 9, 2012, I served the following:
ANSWERBRIEF ON THE MERITS
¥___ On the parties in this action by causing a true copy thereof to be
placed in a sealed envelope with postage thereon fully prepaid in the
designatedarea for outgoing mail addressed as follows;or
Ix On the parties in this action by causing a true copy thereof to be
delivered via Federal Express to the following person(s) or their
representative at the address(es) listed below; or
On the parties in this action by causing a true copy thereof to be
electronically delivered via the internet to the following person(s) or
representative at the address(es) listed below:
SEE ATTACHED SERVICE LIST
I declare under penalty of perjury that the foregoing is true and
correct and that this Proof of Service was executed this 9th day of October,
2012, at Sacramento, California.
Matthew C. Tabarangao
Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, etal.,
_ California Supreme Court Case No. 8202828
(Second District Court of Appeal, Division Eight, Case No. BS232655;
Los Angeles County Superior Court Case No. BS125233)
SERVICE LIST
John M. Bowman Attorneys for Petitioner / Appellant
C.J. Laffer NEIGHBORS FOR SMART RAIL
Elkins Kalt Weintraubet al.
2049 Century Park East, Suite 2700 VIA U.S. Mail and
Los Angeles, CA 90067-3202 Federal Express
Robert D. Thornton Attorney for Respondent
John J. Flynn IT oe EXPOSITION METRO LINE
Robert C. Horton CONSTRUCTION AUTHORITYet
Lauren C. Valk | al.
Nossaman LLP
18101 Von Karman Ave., Suite VIA U.S. Mail
1800
Irvine, CA 92715-1007
Lloyd W. Pellman Attorney for Respondent
Nossaman LLP EXPOSITION METRO LINE
777 South Figureroa Street, Floor 34 CONSTRUCTION AUTHORITYet
Los Angeles, CA 90017 al.
VIA U.S. Mail
John F. Krattli Attorney for Respondent and Real
County Counsel Parties in Interest
Ronald W. Stamm LOS ANGELES COUNTY
Principal Deputy County, Counsel METROPOLITAN
Office of the Los Angeles County TRANSPORTATION
Counsel — Transportation Division AUTHORITY,etal.
One Gateway Plaza
Los Angeles, CA 90012 VIA U.S. Mail
Bradley R. Hogin | Amici Curiae
Woodruff Spradlin and Smart
555 Anton Blivd., Suite 1200 VIA U.S. Mail
Costa Mesa, CA 92626
Neighborsfor Smart Rail vy. Exposition Metro Line Construction Authority,et al.,
California Supreme Court Case No. 8202828
(Second District Court of Appeal, Division Eight, Case No. BS232655;
Los Angeles County Superior Court Case No. BS125233)
SERVICE LIST
(Continued)
Andrew B. Sabey
Cox Castle & Nicholson, LLP
555 California Street, 10" Floor
San Francisco, CA 94104-1513
Rod Attebery
General Counsel
Neumiller & Beardslee
Waterfront Office Towers
509 W. Weber Avenue, 5th Floor
Stockton, CA 95203
Robert D. Thornton
Attorney at Law
NOSSAMAN LLP
18101 Von Karman Avenue, Suite
1800
Irvine, CA 92612
Adam Kear
Senior Deputy General Counsel
Metropolitan Water District of
Southern California
Office of the General Counsel
700 N. AlamedaStreet
Los Angeles, CA 90012
Amici Curiae
VIA U.S. Mail
Amicus Curiae
SAN JOAQUIN COUNCIL OF
GOVERNMENTS
VIA U.S. Mail
Amici Curiae
FOOTHILL / EASTERN
TRANSPORTATION CORRIDOR
AGENCY, THE SAN JOAQUIN
HILLS TRANSPORTATION
CORRIDOR AGENCYand
SAN FRANCISCO COUNTY
TRANSPORTATION AGENCY
VIA U.S. Mail
Amicus Curiae
METROPOLITAN WATER
DISTRICT OF SOURTHERN
CALIFORNIA
VIA U.S. Mail
Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, et al.,
California Supreme Court Case No. 8202828
(Second District Court of Appeal, Division Eight, Case No. BS232655;
Los Angeles County Superior Court Case No. BS125233)
SERVICE LIST
(Continued)
Joann Africa Amicus Curiae
Chief Legal Counsel - SOUTHERN CALIFORNIA
Sharon Neely ASSOCIATION OF
Deputy Executive Director GOVERNMENTS
Southern California Association of
Governments VIA U.S. Mail
818 W. Seventh Street, 12th Floor
Los Angeles, CA 90017
Patricia Taylor
Executive Director
Madera County Transportation
Commission
2001 Howard Road, Suite 201
Madera, CA. 93637
Steve DeBaun
Charity Schiller
Best Best & Krieger LLP
3750 University Avenue, Suite 400
Riverside, CA 92501
P.O. Box 1028
Riverside, CA 92502
Malathy Subramanian
Best Best & Krieger, LLP
2001 N. Main Street, Suite 390
Walnut Creek, CA 94596
Amicus Curiae
MADERA COUNTY
TRANSPORTATION
COMMISSION
VIA U.S. Mail
Amicus Curiae
RIVERSIDE COUNTY
TRANSPORTATION
COMMISSION
VIA U.S. Mail
Amicus Curiae
CONTRA COSTA
TRANSPORTATION
AUTHORITY
VIA U.S. Mail
Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, et al.,
California Supreme Court Case No. S202828
(Second District Court of Appeal, Division Eight, Case No. BS232655;
Los Angeles County Superior Court Case No. BS125233)
SERVICE LIST
(Continued)
Michael Estrada
General Counsel
Richards Watson Gershon
355 South Grand Avenue, 40th
Floor
Los Angeles, CA 90071-3101
Evelynn N. Tran
Senior Assistant Counsel
Santa Clara Valley Transportation
Authority
3331 North First Street
Building C, Second Floor
San Jose, CA 95134
Bradley R. Hogin
_ Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Amicus Curiae
METRO GOLD LINE FOOTHILL
EXTENSION CONSTRUCTION
AUTHORITY
VIA U.S. Mail
Amicus Curiae
SANTA CLARA VALLEY
TRANSPORTATION
AUTHORITY
VIA U.S. Mail
Amicus Curiae
ORANGE COUNTY
TRANSPORTATION
AUTHORITY
VIA USS. Mail