The Court disagreed, however, with the developer’s position that such thresholds precluded a fair argument of potentially significant adverse traffic impacts requiring an EIR, observing that: “Thresholds of significance may not be applied “in a way that forecloses the consideration of any other substantial evidence showing there may be a significant effect.”” (Citing Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114.) Here, the Court found that “[t]he fact-based comments of residents and City staff and officials supported a fair argument that unusual circumstances in Niles might render the thresholds inadequate to capture the impacts of congestion on Niles Boulevard extending from the Niles/Mission intersection well into the Niles HOD commercial core.”
Compliance with a regulatory requirement cannot “foreclose consideration of substantial evidence showing a significant environmental impact from a project.” (Citing Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114.) Rather, courts are required “under the fair argument approach to look at evidence beyond the regulatory standard, or in contravention of the standard, in deciding whether an EIR must be prepared.”
Especially because the proposed new subdivision (d) of §15064.7 relies heavily on the rationale of the appellate decision in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98 (“CBE”), it would be helpful to add the following language from that case at its beginning: “[A] lead agency’s use of existing environmental standards in determining the significance of a project’s environmental effects is an effective means of promoting consistency in significance determinations and integrating CEQA’s environmental review activities with other environmental program planning and regulation.” (Id., at 111, citing MaureenF.