Case Number: BS169426 Hearing Date: August 09, 2018 Dept: 85

Lydia Poncé, et al. v. City of Los Angeles, et al., BS 169426

Tentative decision on petition for writ of mandate: granted in part

Petitioners Lydia Poncé, Evelyn Aguilar, Gerardo Gomez, Jeanine Huitzil, Ivonne Rodriguez, Araceli Tlatoa, and South Central Farmers Restoration Committee seek a writ of mandate directing Respondents City of Los Angeles (“City”), Los Angeles City Council (“City Council”), and Department of City Planning (“Department”) to set aside Respondents’ certification of an Environmental Impact Report (“EIR”).

The court has read and considered the moving papers, joint opposition,[1] and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on April 20, 2017. The operative pleading is the Third Amended Petition (“TAP”), filed February 6, 2018. The TAP alleges in pertinent part as follows.

In February 2013, Real Party-in-Interest PIMA Alameda Partners, LLC (“PIMA”) submitted applications to the City to redevelop the properties located at 4051 S. Alameda Street, 1700-1838 E. Martin Luther King Jr. Boulevard, 1708-1835 E. 40th Place, 1707-1843 E. 41st Street, and 4014 and 4066 South Long Beach (“Project Site”). TAP ¶¶ 42-43. Pima applied for a subdivision of the Project Site to convert the parcel into four lots, as well as for a Site Plan Review for the construction, use, and maintenance of four new industrial buildings on the Project Site (“Project Applications”). TAP ¶42.

In May 2013, the City circulated an Initial Study/Mitigated Negative Declaration (“MND”) for the Project. TAP ¶44. After receiving comments on the initial study, the City opted to prepare a full Environmental Impact Report (“EIR”). TAP ¶45. The Draft EIR (“DEIR”) was circulated for public comment between January 22, 2015 and March 9, 2015. TAP ¶46. The Final EIR (“FEIR”) was released on June 16, 2016. TAP ¶47.

On July 6, 2016, the City’s Deputy Advisory Agency (“Advisory Agency”) and the Department conducted a public hearing on the Project. TAP ¶48. The Deputy Advisory Agency and the Department approved the Project on September 23, 2016. TAP ¶49. The approvals included approval of the subdivision for the Project (AA-2012-919-PMLA) and the Site Plan Review (DIR-2013-887-SPR), as well as certification of the FEIR and adoption of a statement of overriding considerations (ENV-2012-920-EIR, SCH No. 2014061030). Ibid.

On October 11, 2016, Petitioner South Central Farmers Restoration Committee (“South Central Farmers”) appealed the September 23, 2016 decision to the City Planning Commission (“CPC”) in its entirety, including the subdivision, Site Plan Review, and EIR. TAP ¶50. On November 10, 2016, the CPC conducted a public hearing on the Project, approved the Project, and denied the appeal. TAP ¶51.

On December 15, 2016, South Central Farmers appealed the CPC’s decision to the City Council, including the subdivision, the Site Plan Review, and the EIR. TAP ¶52. On March 7, 2017, the City Planning and Land Use Management Committee (“PLUMC”), a subcommittee of the City Council, conducted a public hearing on the Project. TAP ¶53. The PLUMC recommended that the City Council deny the appeal, approve the Project, and adopt the CPC’s decision. Ibid. On March 21, 2017, the City Council conducted a hearing on the Project, denied the appeal, and upheld PLUMC’s recommendation. TAP ¶54.

The TAP contains three causes of action which each allege violations of the California Environmental Quality Act (“CEQA”).

The first cause of action alleges that Respondents violated CEQA by failing to adequately analyze and mitigate the Project’s environmental impacts. TAP ¶57. The FEIR’s failures include, but are not limited to, the failure to consider a reasonable range of alternatives, failure to analyze Project objectives, failure to analyze the Project’s environmental baseline, and failure to provide an adequate Project description. TAP ¶57.

The second cause of action alleges that Respondents violated CEQA by adopting findings and a Statement of Overriding Considerations that are inadequate as a manner of law. TAP ¶61. Petitioners allege that the determinations that certain environmental impacts of the Project would be less than significant, that the alternatives to the Project were infeasible, and that the environmental impacts had been mitigated to the extent feasible are not supported by substantial evidence. Ibid.

The third cause of action alleges that Respondents violated CEQA by declaring the CPC’s decision to approve the Project as final and not permitting the Project approvals and EIR certification to be appealed to the City Council. TAP ¶66.

2. Course of Proceedings

On October 12, 2017, the court, inter alia, sustained without leave to amend Respondents’ demurrer to the First Amendment Petition’s third and fourth causes of action alleging violations of the Subdivision Map Act and the City’s General Plan, respectively. The court ruled that these two claims were time-barred. The court granted leave to amend the first and second causes of action. Petitioners filed a Second Amended Petition, adding a new third CEQA cause of action without permission to do so. The court granted Respondents’ motion to strike, but subsequently granted Petitioners leave to bring the claim back in the TAP.

On December 12, 2017, the court authorized oversized briefs as follow: an 18-page opening brief, 18-page opposition brief, and ten-page reply brief.

On February 6, 2018, the court granted Petitioners’ motion for leave to file a TAP.

B. Standard of Review

A party may seek to set aside an agency decision for failure to comply with CEQA by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus (CCP §1085). A petition for administrative mandamus is appropriate when the party seeks review of a “determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with [CEQA].” Pub. Res. Code §21168. This is generally referred to as an “adjudicatory” or “quasi-judicial” decision. Western States Petroleum Assn. v. Superior Court, (“Western States”) (1995) 9 Cal.4th 559, 566-67. A petition for traditional mandamus is appropriate in all other actions “to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with [CEQA].” Where an agency is exercising a quasi-legislative function, it is properly viewed as a petition for traditional mandamus. Id. at 567; Pub. Res. Code §21168.5.

At issue is Petitioners’ CEQA challenge to a quasi-adjudicative action taken by the City in approving the Project. This procedural setting, where an administrative hearing was required, is governed by administrative mandamus. In determining whether to grant a petition in a CEQA case, the court decides whether there was a prejudicial abuse of discretion. Public entities abuse their discretion if their actions or decisions do not substantially comply with the requirements of CEQA. Sierra Club v. West Side Irrigation District, (2005) 128 Cal.App.4th 690, 698. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. Western States, supra, 9 Cal.4th at 568; Pub. Res. Code §21168.5.

Whether the agency abused its discretion must be answered with reference to the administrative record. This standard requires deference to the agency’s factual and environmental conclusions based on conflicting evidence, but not to issues of law. Laurel Heights Improvement Assn. v. Regents of University of California, (“Laurel Heights”) (1988) 47 Cal.3d 376, 393, 409. Argument, speculation, and unsubstantiated opinion or narrative will not suffice. Guidelines, 15384(a), (b).[2] Petitioners have the burden of showing a fair argument based on substantial evidence that there is a reasonable possibility that the project may cause a significant effect on the environment sufficient to remove the project from the categorically exempt class. Fairbank v. City of Mill Valley, (1999) 75 Cal.App.4th 1243, 1251. “Substantial evidence” is defined as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. CEQA Guidelines §15384(a). Whether substantial evidence exists is a question of law. See California School Employees Association v. DMV, (1988) 203 Cal.App.3d 634, 644.

C. CEQA

The purpose of CEQA, (Pub. Res. Code §21000 et seq.,) is to maintain a quality environment for the people of California both now and in the future. Pub. Res. Code § 21000(a). “[T]he overriding purpose of CEQA is to ensure that agencies regulating activities that may affect the quality of the environment give primary consideration to preventing environmental damage.” Save Our Peninsula Committee v. Monterey County Board of Supervisors, (2001) 87 Cal.App.4th 99, 117. CEQA must be interpreted “so as to afford the fullest, broadest protection to the environment within reasonable scope of the statutory language.” Friends of Mammoth v. Board of Supervisors, (1972) 8 Cal.3d 247, 259.

The Legislature chose to accomplish its environmental goals through public environmental review processes designed to assist agencies in identifying and disclosing both environmental effects and feasible alternatives and mitigations. Pub. Res. Code §21002. Public agencies must regulate both public and private projects so that “major consideration is given to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian.” Pub. Res. Code §21000(g).

Under CEQA, a “project” is defined as any activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment (1) undertaken directly by any public agency, (2) supported through contracts, grants, subsidies, loans or other public assistance, or (3) involving the issuance of a lease, permit, license, certificate, or other entitlement for use by a public agency. Pub. Res. Code §21065. The word “may” in this context means a reasonable possibility. Citizen Action to Serve All Students v. Thornley, (1990) 222 Cal.App.3d 748, 753. “Environment” means the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance. Guidelines §21060.5.

An EIR must be prepared for a project if the agency concludes that “there is substantial evidence, in light of the whole record… that the project may have a significant effect on the environment.” Pub. Res. Code §21080(d). The EIR is the “heart” of CEQA, providing agencies with in-depth review of projects with potentially significant environmental effects. Laurel Heights, supra, 6 Cal.4th at 1123. An EIR describes the project and its environmental setting, identifies the potential environmental impacts of the project, and identifies and analyzes mitigation measures and alternatives that may reduce significant environmental impacts. Id. Using the EIR’s objective analysis, agencies “shall mitigate or avoid the significant effects on the environment… whenever it is feasible to do so. Pub. Res. Code §21002.1. The EIR serves to “demonstrate to an apprehensive citizenry that the agency has in fact analyzed and considered the ecological implications of its actions.” No Oil, Inc. v. City of Los Angeles, (1974) 13 Cal.3d 68, 86. It is not required to be perfect, merely that it be a good faith effort at full disclosure. Kings County Farm Bureau v. City of Hanford, (1990) 221 Cal.App.3d 692, 711-12. A reviewing court passes only on its sufficiency as an informational document and not the correctness of its environmental conclusions. Laurel Heights, supra, 47 Cal.3d at 392.

All EIRs must cover the same general content. Guidelines §§ 15120-32. An EIR should be prepared with a sufficient degree of analysis to provide decision-makers with information which enables them to make a decision which intelligently takes account of environmental consequences. The environmental effects need not be exhaustively reviewed, but the EIR’s sufficiency is viewed in the light of what is reasonably feasible. Guidelines §15151. The level of specificity of an EIR is determined by the nature of the project and the “rule of reason.” Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, (1993) 18 Cal.App.4th 729, 741-42. The degree of specificity “will correspond to the degree of specificity involved in the underlying activity which is described in the EIR.” Guidelines §15146. The ultimate decision whether to approve a project is a nullity if based upon an EIR that does not provide decision-makers, and the public, with the information about the project required by CEQA. Santiago County Water District v. County of Orange, (1981) 118 Cal.App.3d 818, 829.

If a local agency’s non-elected body certifies an EIR, that certification may be appealed to the local agency’s elected decision-making body, if any. Pub. Res. Code §21151(c).

D. City’s Regulatory Framework[3]

The City is a charter city. The Department shall have and exercise all powers and duties provided for it by the Charter or by ordinance. City Charter §550. The Department’s planning commissions possess the power to hear and determine applications for, or appeals related to conditional use permits and other similar quasi-judicial approvals, in accordance with procedures prescribed by ordinance. City Charter §552(c).

Any development project which creates an increase of 50,000 gross square feet or more of non-residential floor area must obtain site plan approval from the Director of City Planning or his/her designee. LAMC §160.05(C)(1)(a); §160.05(G)(1)-(2). As part of the application for site plan review, the project applicant must file necessary forms and information for environmental review as prescribed by the Director. LAMC §160.05(G)(2). Appeals of the Director’s subdivision determinations are filed with and heard by the APC. LAMC 160.05(H)(1)-(2).

Any development project which divides land into two, three, or four parcels must submit a parcel map approved by the City Advisory Agency. LAMC §17.50(B). Appeals of the City Advisory Agency’s parcel map decisions are also heard and determined by the CPC. LAMC §21 17.02, 17.54(A).

No additional appeal to the City Council is permitted from the CPC’s decision on site plan approval and parcel map entitlements. The City has no specific procedure for appeal of an EIR, and follows CEQA statutory law. See Pub. Res. Code §21151(c).

E. Statement of Facts

1. Project Description

The Project involves the subdivision of one 565,798 net square-foot parcel into four lots and the construction of four industrial buildings on them. AR 6428. The Project also involves the merger of a right-of-way of 40th Place and two alleys north and south of 40th Place. Ibid. The Project’s proposed land use is “light manufacturing.” AR 6435.

2. Project History

In 1986, the City acquired the Property through condemnation for the purpose of constructing a trash incinerator known as the LANCER project. AR 3305. The condemnation judgment provided the Libaw-Horowitz Investment Company (“LBIC”), owner of 11 acres of the approximately 13-acre site, with a first right to repurchase the Property should the City determine that it was no longer needed for public use. Ibid. The LANCER project was eventually terminated due to community opposition. AR 3305.

In 1994, the City transferred the Property to the Harbor Department for $13.3 million, and the Harbor Department then granted a revocable permit to the City Regional Food Bank (“Food Bank”) to occupy and use the site as a community garden. AR 3305.

From 1994 to 2006, Petitioner South Central Farmers assumed responsibility for maintaining the farm. AR 6746. South Central Farmers were a group of approximately 350 families residing in the community surrounding the Project site. AR 2929. About 14 acres in size, the garden became one of the largest urban community gardens in the United States. Ibid. The garden grew 100 to 150 different species of fruits, vegetables, and herbs and certain Mesoamerican traditional plants unavailable in local or national markets. Ibid. The farm served as a focal point for the farmers and their families. Ibid.

Concurrently, in late 1994, the Harbor Department commenced negotiations with LBIC in regard to the repurchase of the Property. AR 3305. In 2001, the Harbor Department informed LBIC that it would not sell the Property, but instead would offer it publicly for development under a long-term lease. Ibid. LBIC filed suit against the City for breach of contract, and in 2003 the City settled with LBIC after closed negotiations. Ibid. As part of the settlement agreement, the City sold the land to LBIC, and LBIC agreed to dedicate 2.6 acres of the Property for park and recreational purposes. Ibid.

LBIC gave notice to the Food Bank that its revocable permit to occupy the land would terminate in February 2004. Ibid. The farmers filed a lawsuit arguing that the City’s closed-session settlement with LBIC violated their rights. Ibid. The farmers were granted a preliminary injunction and they were allowed to remain on the land until the case was resolved in LBIC’s favor in June 2005. Ibid. The community garden remained in use until it was demolished in 2006. AR 3305. The Property has been vacant since 2006. AR 3305.

In June 2008, the City circulated an MND to evaluate the proposed development of the Property. AR 3305. LBIC served as the project applicant on behalf of a garment manufacturer who sought to construct a high-ceiling warehouse facility. Ibid. LBIC ultimately did not seek final approval of this project because a sale of the Property to the garment manufacturer fell through. Ibid.

In March 2012, LBIC sold the Property to the current owner, PIMA. AR 3306.

3. The MND

In February 2013, Segal and REA Architecture, acting on behalf of PIMA, submitted an application to develop the Project. AR 3306.

In May 2013, the City circulated an MND for the Project. AR 3306, 6428-52. Attached to the MND is an Initial Study concluding that the Project may have a significant effect on the environment, but that this effect will not occur because of revisions agreed to by the Project applicant. AR 6436. The Initial Study identified the following areas as potentially affected by the Project: aesthetics, air quality, geology and soils, greenhouse gas emissions, land use and planning, noise, public services, recreation, and utility and service systems. AR 6438.

The Initial Study included a Traffic Impact Study (“TIS”) prepared by Traffic Design, Inc. (“Traffic Design”) and conducted in September 2012. AR 1655-746, 6453. The TIS evaluated seven key signalized intersections in the general vicinity of the Project site. AR 1660. Based on the results, Traffic Design concluded that the Project “would not significantly impact any of the key intersections analyzed in the surrounding roadway system” and that the studied intersections “would continue to operate at an acceptable level of service (i.e., LOS A through D) during the AM and PM peak hours.” AR 1661. The TIS therefore concluded that no mitigation measures were necessary. Ibid.

4. The FEIR

Because the City received many public comments on the MND, the City decided to prepare an EIR for the Project. AR 3306, 5251. From June 17 to July 17, 2014, the City circulated a Notice of Preparation (“NOP”). AR 6076.

From January 22, 2015 to March 9, 2015, a DEIR was circulated for public comment and review. AR 6061. The DEIR assessed seven environmental issues based on public comments in response to the NOP: air quality, cultural resources, transportation and traffic, utilities and service systems, greenhouse gas emissions, hazards and hazardous materials, and land use and planning. AR 6062.

The DEIR contains an addendum to the TIS (“Addendum”). AR 2756-817. The Addendum states that it was conducted in conformity with the “Traffic Study Policies and Procedures” set forth by the City’s Department of Transportation (“LADOT”). AR 2759. The purpose of the Addendum was to evaluate the impacts on traffic circulation system due to changes in the size of the Project, evaluate reduction in traffic generation due to workers coming from within one miles radius area, and address impacts on transit and freeway segments/ramps in the vicinity of the Project. AR 2759. The Addendum examined two additional intersections of I-10 Freeway ramps at Alameda Street to determine if freeway segment and off-ramps would be impacted by Project traffic. AR 2761.

The Addendum noted that LADOT entered into an agreement with Caltrans requiring a focused freeway impact analysis per Caltrans procedures for all projects begun after October 2013. AR 2765. Traffic Design conducted a “freeway segment analysis” and “freeway off-ramp analysis” using Caltrans procedures and determined that none of the criteria for a freeway impact analysis had been triggered. AR 2765-66. The Addendum concluded that the Project will not have a significant impact on the Metro’s CMP network and freeway segments or off-ramps. AR 2767.

On February 25, 2015, Caltrans sent the City a letter requesting a traffic analysis of the state’s highway facilities and raising a concern that the Project might have a significant cumulative impact to the state facilities. AR 3394.

In June 2016, the City released an FEIR for the Project. AR 2859. The FEIR, inter alia, responded to Caltrans’ letter. AR 2883-88. The FEIR stated that the Addendum adhered to LADOT’s guidelines and, pursuant to the LADOT’s agreement with Caltrans, concluded that a freeway impact analysis was not warranted. AR 2883-84.

5. The Advisory Agency Decision

The City’s Advisory Agency held a public hearing for the EIR on July 6, 2016. AR 5811. On September 23, 2016, the Advisory Agency certified the FEIR, adopted findings for certification of the FEIR, adopted a Statement of Overriding Considerations (ENV-2012-920-EIR), and approved the Parcel Map (AA-2012-919-PMLA). AR 3-4. On the same day, the City’s Director of Planning approved the Project’s Site Plan Review (DIR-2013-0887-SPR). AR 97.

6. The Appeal

On October 7, 2016, Tezozomoc of South Central Farmers appealed to the CPC from the Advisory Agency’s certification of the FEIR and approval of the Parcel Map as well as from the Director of Planning’s Site Plan approval. AR 7554-58, 7579-7604.

The CPC held a November 10, 2016 hearing on the appeals. AR 5824, 5829-30. On December 6, 2016, the CPC issued a Letter of Determination certifying the FEIR, adopting the Statement of Overriding Considerations, denying Tezozomoc’s appeal of the parcel map and site review plan, and sustaining the Advisory Agency’s decision. AR 203-04. The letter stated that the CPC’s determination was final and not further appealable under City procedures. AR 204.

On December 12, 2016, Tezozomoc appealed the CPC’s decision in its entirety to the City Council. AR 11364-78, 17816-17. The City only accepted the appeal of the Project’s CEQA determination, finding that the CPC’s determinations concerning the parcel map and site plan approval were final and not further appealable. AR 5659.

PLUM conducted a March 7, 2017 public hearing on the appeal. AR 6006, 6011. PLUM recommended that the City deny the appeal and uphold the CPC’s findings. AR 6048. On March 21, 2017, the City Council adopted PLUM’s recommendation, thereby denying Tezozomoc’s appeal and making CEQA certification findings. AR 426.

On March 22, 2017, a Notice of Determination was posted. AR 1.

F. Analysis

Petitioners seek a writ of mandate for violation of CEQA on two grounds: (1) the City’s appeal procedure did not allow the City Council to consider the Project Approvals with the FEIR and (2) the City wrongly refused direction from Caltrans to analyze the Project’s direct and cumulative impacts on nearby state highway facilities.

1. The City’s CEQA Appeal Procedure

Petitioners argue that the City’s appeal procedure violates CEQA because it does not permit the City Council, which is the elected legislative body hearing appeals, to consider entitlements when addressing an appeal from a non-elected decision-maker’s certification of an EIR. Pet. Op. Br. at 4-5. Petitioners argue that the City’s administrative procedure vests entitlements in project developers before the City Council’s environmental review, thereby preventing their modification. Id. at 5-6.

a. Administrative Exhaustion

The exhaustion of administrative remedies is a jurisdictional prerequisite to resort to courts. Thomas v. Shewry, (2009) 170 Cal.App.4th 1480, 1485; Kaiser Foundation Hospitals v. Sacramento County Superior Court, (2005) 128 Cal.App.4th 85, 100. To satisfy the exhaustion requirement, the exact factual issues and legal theories must have been presented to the administrative agency. Mani Brothers Real Estate Group v. City of Los Angeles, (“Mani”) (2007) 153 Cal.App.4th 1385, 1394. While this requirement demands less specificity than an appeal from a judicial proceeding, the presentation must nevertheless consist of more than a relatively few bland and general references (id., at 1396) or a perfunctory or “skeleton” showing at the administrative hearing. Coalition for Student Action v. City of Fullerton, (1984) 153 Cal.App.3d 1194, 1197. Rather, the presentation must provide the agency with an opportunity to receive and respond to articulated factual issues and legal theories before its action are subjected to judicial review. Mani, supra, 153 Cal.App.4th at 1396; see also Sierra Club v. San Joaquin Local Agency Formation Com., (1999) 21 Cal.4th 489, 510 (“Administrative agencies must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which they have jurisdiction to act before those issues are raised in a judicial forum.”).

CEQA expressly incorporates administrative exhaustion by requiring that alleged grounds of non-compliance be “presented to the public agency orally or in writing … during the public comment period … or prior to the close of the public hearing on the project before the issuance of the notice of determination.” Pub. Res. Code section 21177(a).

b. Pertinent Facts

On December 12, 2017, Tezozomoc’s counsel sent the City a letter summarizing Tezozomoc’s contentions about the FEIR’s inadequacy. AR 17816-17. The subject line of the letter stated in pertinent part: “Case No. ENV-2012-920-EIR Related to final approvals DIR-2013-0887-SPR, AA-2012-919-PMLA.” Ibid. The letter provided: “[W]e hereby appeal the Planning Commission’s certification of the final environmental impact report prepared for the PIMA project…. Although the [CPC’s] rejection of the appeals of the site plan review (DIR-2013-0887-SPR) and parcel map approval (AA-2012-919-PMLA) are not subject to further appeals, [CEQA] requires that EIR certification be appealable to an elected decisionmaking body.” Ibid. (emphasis added). That same day, Tezozomoc completed an “Appeal Application” form indicating that he was appealing the CPC’s entire CEQA decision. AR 11364-65.

On January 12, 2017, the Department sent the City Clerk’s Office a “Planning Department Transmittal” form. AR 5657-59. The form stated: “The [CPC’s] determinations were issued on December 6, 2016. DIR-2013-887-SPR and AA-2012-919-PMLA are not further appealable. The appellant is now appealing the EIR, only.” AR 5659.

On February 24, 2017, Tezozomoc’s counsel sent PLUM a letter. AR 8049-50. The letter stated that “[o]n behalf of Mr. Tezozomoc of the South Central Farmers, we appealed the [CPC’s] certification of the [FEIR] prepared for the PIMA project.” AR 8049. In bullet points, the letter explained why Tezozomoc believed the FEIR to be inadequate. AR 8049-50. The letter concluded: “The EIR’s deficiencies were not corrected in the final EIR, and approval of the Project without further analysis and enforceable mitigation measures will violate [CEQA]. Accordingly, the Director of Planning designee’s approval of the site plan review, in light of the deficient EIR, findings, and statement of overriding considerations is an abuse of discretion that must be corrected an appeal.” AR 8050.

On March 2, 2017, the Department sent PLUM a letter describing Tezozomoc’s appeal as “[a]n appeal of the [CPC’s] action relative to the EIR….” AR 5769.

At the March 7, 2017 PLUM hearing, PIMA’s counsel remarked: “[T]his is a CEQA appeal. A decision by the planning commission that denied the prior appeal from the advisory agency and the director of planning, the site plan review. The parcel map was final with respect to the project approvals[.] [U]nder state law, because a non-elected body certified the [EIR,] [t]hat decision is appealable to the elected body, city council. That’s the only issue that we’re here about.” AR 6173.

b. Failure to Exhaust

Respondents argue that Petitioners failed to raise any procedural defect in the City’s CEQA appeal procedure in violation of the administrative exhaustion required by Pub. Res. Code section 21177(a). Opp. at 11-13.

Petitioners contend that they exhausted this issue during the administrative process because they and Real Party PIMA both raised concerns about the City’s CEQA appeal procedure. Id. at 6-7.

Petitioners have not exhausted their administrative remedies as required by Pub. Res. Code section 21177(a). To constitute exhaustion, a party’s presentation must consist of more than a few bland and general references; it must provide the agency with an opportunity to receive and respond to articulated factual issues and legal theories. Mani, supra, 153 Cal.App.4th at 1396. All of Petitioners’ filings — most particularly their attorney’s December 12, 2017 detailed letter, stated that they are appealing the FEIR’s certification — not the City’s procedure separating the site plan review and parcel map determinations from City Council review.

Petitioners rely on the February 24, 2017 letter to PLUM and PIMA’s counsel’s remarks (Pet. Op. Br. at 6), but neither supports their position. The February 24 letter expressly states that Petitioners’ appeal challenges the FEIR’s certification. PIMA’s counsel’s remarks reinforce the parties’ understanding that Petitioners’ appeal was limited to EIR certification. Nothing that Petitioners said or did placed the City on notice that they were objecting to the City’s CEQA appeal procedure.

c. The Futility Exception

Petitioners argue that they were not required to address flaws in the City’s CEQA appeal process because it would have been futile to do so, and because they had no procedural opportunity to raise the issue. Pet. Op. Br. at 8-10.

Exhaustion of administrative remedies may be excused if the administrative agency has made it clear what its ruling would be such that an administrative appeal would be futile. Huntington Beach Police Officers’ Assn. v. City of Huntington Beach, (1976) 58 Cal.App.3d 492, 499. Futility is shown when “the petitioner can positively state that the [decision maker] has declared what its ruling will be in the particular case.” Gantner & Mattern Co. v. California Employment Com., (“Gantner”) (1941) 17 Cal.2d 314, 318. A staff recommendation counter to the petitioner’s position is not sufficient to demonstrate futility. La Costa Beach Homeowners Assn. v. Wayne, (1979) 89 Cal.App.3d 327, 331. Nor is evidence that the decision-maker has previously decided cases on similar facts against the petitioner’s position. Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 300. The futility exception to the exhaustion requirement is a mixed question of law and fact. Econ. Empowerment Foundation v. Quackenbush, (1997) 57 Cal.App.4th 677, 692.

Petitioners’ futility argument rests on two pieces of evidence: (1) the January 12, 2017 Planning Department Transmittal form (AR 5657-59), and (2) the CPC’s letter of determination issued on December 6, 2016. AR 203-04. The Transmittal form stated: “The [CPC’s] determinations were issued on December 6, 2016…[and the site plan approval and parcel map] are not further appealable. The appellant is now appealing the EIR, only.” AR 5659. The CPC’s letter of determination, which notified Tezozomoc that the FEIR had been certified and the parcel map and site plan review had been approved, concludes: “The determination of the [CPC] is final upon the date of this determination letter, and it is not further appealable.” AR 204.[4]

Petitioners’ futility argument is not well-taken. Petitioners have shown that the City’s LAMC provides for the following: (a) the initial decisions for a project’s site plan review, parcel map, and EIR certification are made by the Director of Planning, Advisory Agency, respectively; (b) appeals for all three are heard by the CPC; (c) the site plan approval and parcel map are final after their appeal has been denied by the CPC; there is no second-level appeal of these issues to the City Council; and (d) the City Council hears only the CEQA appeal. Petitioners have not shown, however, that the City Council would not vacate any site plan and parcel map entitlements if it granted a CEQA appeal. It is important to note that the City has not adopted a CEQA appeal ordinance, and instead is complying with CEQA’s statutory requirement by granting an elected body appeal. See Pub. Res. Code §21151(c) (“If a nonelected decisionmaking body of a local lead agency certifies an [EIR], … that certification … may be appealed to the agency’s elected decisionmaking body.”). The City therefore has not addressed the finality of entitlements in connection with an appeal to the City Council, and Petitioners cannot positively state what the City Council would have concluded if this issue were properly raised. See Gantner, supra, 17 Cal.2d at 318.

As for Petitioners’ argument that they had no opportunity to raise a defect in the City’s CEQA appeal procedure, there is no reason why Petitioners could not have done so in the City Council appeal if their objection to the FEIR was sustained and the City Council refused to set aside the Project Approvals. The fact that the City Council denied the appeal simply means that Petitioners had no reason to raise this issue.

Petitioners failed to exhaust their administrative remedies by alleging that there is a legal flaw in the City’s CEQA appeal procedure, and the futility exception does not apply.

d. Adequacy of the City’s CEQA Appeal Procedure

(i). CEQA Appeals

If a nonelected decision-making body of a local lead agency certifies an environmental impact report, that certification may be appealed to the agency’s decision-making body, if any. Pub. Res. Code §21151(c); Guidelines §15090(b). Each local lead agency shall provide for such appeals. Ibid. Where an agency allows an appeal to a decision-maker, “the appeal shall be handled according to the procedures of the agency.” Guidelines §15185(a); see Vedanta Society of So. California v. California Quartet, Ltd., (“Vedanta”) (2000) 84 Cal.App.4th 517, 527, n.11. Once adopted, an agency is required to follow its own procedures and the failure to do so may render an action invalid. Starbird v. County of San Benito, (1981) 122 Cal.App.3d 657, 661. See Vedanta, supra, 84 Cal.App.4th at 531-2 (board’s policy that tie vote on appeal from EIR certification results in denial of appeal did not comply with Guideline 15185(a)’s requirement of written procedure); Kleist v. City of Glendale, (1976) 56 Cal.App.3d 770, 778-79 (local ordinance violated CEQA by delegating consideration of EIR to nonelected board).

(ii). Clews

In tClews Land and Livestock, LLC v. City of San Diego, (“Clews”) (2017) 19 Cal.App.5th 161, petitioner Clews challenged the city’s approval of a project to build a private secondary school on land neighboring petitioner’s horse ranch and adoption of a mitigated negative declaration (“MND”) for the project. Id. at 172. The city and real party developer contended that Clews did not exhaust its administrative remedies because it failed to appeal the MND approval to the city council. Id.

The pertinent city procedure (Process Three) required a hearing officer to consider both the project approval and CEQA environmental review at a public hearing. Id. at 186. The hearing officer’s decision could be appealed to the planning commission within ten days, and the planning commission could affirm, reverse, or modify the hearing officer’s decision. Ibid.

The city municipal code permitted an appeal of an environmental decision by a non-elected decision-maker to the city council. Ibid. The city council could deny the appeal and adopt the findings and statement of overriding considerations by the previous decision-maker. Ibid. Or, the city council could grant the appeal and set aside the environmental determination and return it to city staff for reconsideration. Ibid. During the time of reconsideration, the lower decision-maker’s project approval would be held in abeyance. Ibid. The city council retained jurisdiction to consider the revised environmental document and the project at a subsequent hearing. Ibid. The city council could adopt the CEQA findings and approve the project, adopt the CEQA findings and condition or modify the project, or find the environmental documents inadequate, in which case it was obligated to disapprove the project. Id. at 186.

The Clews court summed up the city’s CEQA appeal procedure as permitting a bifurcated appeal of the hearing officer’s project approval and the environmental decision. The appeal of the hearing officer’s project approval is made to the planning commission with a simultaneous appeal of the hearing officer’s environmental determination to the city council. As a result of the bifurcation, the planning commission considers only non-environmental approvals while the city council covers the environmental determination. If the city council grants the appeal, it may consider the project approval as well. Id. at 186.

Clews failed to appeal the hearing officer’s project environmental decision to adopt the MND to the city council and appealed only the project approval to the planning commission. Therefore, it failed to exhaust its administrative remedies for the MND. Id. at 187. Clews argued that its failure was excused because the city’s bifurcated appeal procedure was invalid under CEQA. Id. The court noted that CEQA requires that the decision-maker for project approval also be responsible for complying with CEQA environmental review. See Guidelines §§15025(b), 15356. Assuming the authority is properly delegated, the decision-making body may be an unelected official or commission. Id. (citation omitted). If the decision-maker is unelected, the decision-making body’s compliance with CEQA must be appealable to the agency’s elected decision-making body. Pub. Res. Code §21151(c); Guidelines §§15061(e), 15074(f), 15090(b). Ibid. Since the city’s procedure gave the hearing officer decision-making authority to decide both project approval and CEQA compliance, and since the unelected hearing officer’s environmental determination was appealable to the city council, the city complied with CEQA’s requirements. Id.

Clews argued that the city’s appeal procedures were inadequate because the planning commission had authority over project approvals, but not environmental review. Id. at 188-89. The court rejected this argument because the hearing officer had such authority. Ibid.

Clews also argued that the city council is not a “decision-making body” because it does not decide project approval; only the hearing officer and planning commission do so. Id. at 189. Clews contended that the city council does not meet the definition of a “decision-making body”, which is a “person or group of people within a public agency permitted by law to approve or disapprove the project at issue.” Guidelines §15356. The court rejected this argument because the city council has project approval authority if it grants the environmental determination appeal. Id. The court added that CEQA does not require the local agency’s decision-making body to accept appeals regarding every project approval, only that the environmental determination be appealable. Id. (statutory citations omitted). Therefore, the court upheld the determination that Clews failed to exhaust its administrative remedies.

The court is bound by Clews’s holding – that a city’s bifurcated appeal of an unelected decision-maker’s project approval and environmental decision into two appeals, one where the project approval is considered by a planning commission and a second where the environmental determination is appealed to the elected city council, complies with CEQA where the city council has project approval authority if it grants the environmental determination appeal.

(iii). Petitioners’ Attempted Distinction

Petitioners argue that the discussion in Clews concerning the appeal procedure is dicta because the court’s holding was that the petitioner failed to exhaust administrative remedies. Pet. Op. Br. at 9.[5] Petitioners also distinguish Clews on the basis that the City Council does not have project approval authority if it grants a CEQA appeal. Reply at 5. They assert that Respondents’ CEQA appeal procedures violate section 21151(c) by not allowing the City Council to consider the Project approvals with the FEIR. Pet. Op. Br. at 9.

CEQA requires a local agency to provide for CEQA appeals, and it requires that the final appeal decision be made by an elected body. Pub. Res. Code §21151(c); Guidelines §15090(b); Clews, supra, 19 Cal.App.5th at 189. The City provides for a City Council appeal from CPC environmental decisions because of this law. The City does not have a CEQA appeal ordinance, and it is not required by CEQA to have one. See Clews, supra, 19 Cal.App.5th at 189. Therefore, the City has not taken any affirmative position on what would happen to a project’s entitlements where the City Council grants a CEQA appeal.

Under these circumstances, the City Council may be presumed to follow CEQA where it grants a CEQA appeal by setting aside the entitlements or otherwise not permitting the project to go forward. Guidelines §15091(a) (agency may not approve project with significant environmental impacts unless specific findings are made). This is not a circumstance where a city has adopted a CEQA appeal procedure through policy or ordinance that is inconsistent with CEQA. Compare Vedanta, supra, 84 Cal.App.4th at 531-2 (board’s policy that tie vote on appeal from EIR certification results in denial of the appeal did not comply with Guideline 15185(a)’s requirement of written procedure); Kleist v. City of Glendale, (1976) 56 Cal.App.3d 770, 778-79 (local ordinance violated CEQA by delegating consideration of EIR to nonelected board). The City simply does not have a written CEQA procedure. The City Council permits CEQA appeals pursuant to statutory requirement, and there is no reason to believe that it will deviate from CEQA in crafting a remedy where an EIR is inadequate.

This conclusion is supported by the existing findings for the Project Approvals. As Respondents note (Opp. at 17), the parcel map and site plan approval both contain numerous environmental findings and are subject to conditions that include the FEIR’s mitigation monitoring program. AR 214-23, 299-311, 318-27, 335-99. As Respondents argue, Petitioners’ argument that the City Council is foreclosed from doing so confuses vested rights with the finality of the entitlement decisions. Opp. at 18. The Project Approvals are final, but Real Party PIMA does not have any vested rights. Petitioners also are confusing the finality of the Project Approvals with the City Council’s power to set them aside as invalid. The Project Approvals cannot be challenged, but the City Council still could have set them aside as invalid if the FEIR appeal had been granted.[6]

Petitioners cite Citizens for Restoration of L Street v. City of Fresno, (“L Street”) (2014) 229 Cal.App.4th 340, 359, for the proposition that an elected decision-making body must act as the final, independent decision-making body for both the project and the environmental review documents. Pet. Op. Br. at 4. L Street does not so provide. L Street held that CEQA was not complied with where a preservation commission had authority for project approval, but not environmental review. Id. at 355. The court merely noted that CEQA compliance would have been achieved if the city council had acted as the final, independent decision-making body conducting a de novo review of both the project and environmental review documents. Id. at 359. The court did not require that this be true.

Petitioners rely on POET, LLC v. State Air Resources Board, (“POET”) (2013) 218 Cal.App.4th 681, 731, for the proposition that CEQA is violated where an agency separates the authority to approve a project from the responsibility to complete environmental review. Pet. Op. Br. at 4. This would be true if the City separated the authority to approve or disapprove the Project from the Advisory Agency, to which the City delegated authority to complete the environmental review. The City has not done so.

The City’s appeal procedure complies with CEQA because (a) it has not adopted an ordinance inconsistent with a required CEQA appeal, (b) it provides an appeal by the City Council, and (c) the City Council can be relied upon to impose an appropriate remedy where an appeal is granted.

2. Traffic Impacts

a. Responsible Agencies

A responsible agency is an agency, other than the lead agency, which “has responsibility for carrying out or approving a project.” Pub. Res. Code §21069. A responsible agency includes those agencies which have “discretionary approval power over the project.” Guidelines §15831. A “discretionary project” means a project which requires the exercise of judgment or deliberation when the public agency decides to approve or disapprove a particular activity, as distinguished from situations where the public agency merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations. Guidelines §15357; see also Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo, (1985) 172 Cal.App.3d 151, 174.

Immediately after deciding that an EIR is required for a project, the lead agency shall send each responsible agency (among others) an NOP stating that an EIR will be prepared. Guidelines §15082(a). The responsible agency must provide the lead agency with specific detail about the scope and content of the environmental information related to the responsible agency’s area of statutory responsibility to be included in the DEIR. Guidelines §15082(b). The responsible agency must reach its own conclusions about whether and how to approve the project. Guidelines §15096(a). If the responsible agency decides that the FEIR or MND is inadequate, it has options inter alia of waiving any defect, preparing a subsequent EIR, or taking over the lead agency role. Guidelines §15096(e).

Petitioners assert that Caltrans and MTA are responsible agencies for the Project. Pet. Op. Br. at 11. Petitioners rely on the CMP Land Use Analysis program, which integrates MTA and Caltrans into the CEQA process for local agencies by requiring that they be consulted regarded a project’s regional transportation impact. Tsai Decl. Ex. A, p. 44. The CMP requires a transportation impact analysis be included in the EIR. Id. The CMP provides: “In order to monitor activities affected by [transportation impact analysis] requirements, NOPs must be submitted to MTA as a responsible agency”. AR 653. The CMP concludes: “While distribution of the…NOP to MTA is both a CMP and a CEQA requirement, the role of MTA will be limited to that of a “responsible agency….” Tsai Decl. Ex. A, p. 44. The CMP adds: “Caltrans must also be consulted through the Notice of Preparation (NOP) process….” AR 653-54. MTA further must approve any construction within 100 feet of its right-of-way. AR650. Petitioners argue that Respondents treated MTA and Caltrans as responsible agencies because both were on the NOP distribution list. AR 2844-45. Pet. Op. Br. at 11.

While the CMP makes plain that MTA is a responsible agency for regional projects, Petitioners point to nothing in the FEIR that violated the City’s duty to consult with MTA and include a transportation impact analysis.[7] As for Caltrans, its involvement in the Project merely that of a public commenter. Caltrans has no discretionary authority to carry out or approve the Project. See Pub. Res. Code §21069; Guidelines §15831. The mere fact that the City included Caltrans on the NOP distribution list does not make it a responsible agency. Caltrans was not a responsible agency; it was a public commenter.

b. The Caltrans Letters

Petitioners argue that the City ignored Caltrans’ direction to analyze direct and cumulative impacts on nearby state highway facilities. Pet. Op. Br. at 11-12.

On July 14, 2014, Caltrans commented on the DEIR. AR 631-32. Caltrans opined that the Project will generate approximately 2,052 new passenger car round trips per day, with 173/185 trips during peak AM and PM hours. AR 631. Caltrans noted that the TIS did not include a traffic analysis of state facilities. Caltrans requested that the City perform an additional TIS focusing and incorporating the following:

(1) 2012 traffic conditions at the I-10 Freeway and Alameda Street on/off ramps;

(2) Project trips assignments (sic.) to the I-10 Freeway and on/off ramps;

(3) Project opening year (2014) traffic conditions for level of service (LOS) with and without the Project;

(4) traffic mitigation measures to reduce any significant impacts to a level of insignificance; and

(5) an analysis of the off-ramps in the Project vicinity utilizing the Highway Capacity Manual 85th percentile queuing method with the actual signal timing at the ramps’ termini. AR 631-32.

The City provided a response in the FEIR. AR 2883-84. The City noted that its TIS adhered to the MOU between LADOT and Caltrans. AR 2883. Because the Project site is located entirely within the City’s jurisdiction, LADOT requires that the TIS follow its “Traffic Study Policies and Procedures”, and the TIS did so. Id. The MOU sets forth criteria which, if triggered, require the City to conduct a focused freeway impact analysis. Ibid. The City determined that the Project would have 994 planned employees and would generate a maximum of 22 trips on the I-10 segments East and West of Alameda Street during the peak hour. Id. This was less than the criteria requiring additional traffic impact analysis. Id. Accordingly, the City concluded that the Project’s traffic contribution to freeways and off-ramps is not large enough to warrant further analysis. Ibid.

While Caltrans’ comment is entitled to respect, the City’s position must be upheld if it is supported by substantial evidence. North Coast Rivers Alliance v. Marin Municipal Water District et al., (2013) 216 Cal.App.4th 614 642 (issue is not whether other methods recommended by consulting public agency might have been used, but whether the lead agency relied on evidence that a reasonable person might accept). As Respondents argue (Opp. at 21), the City did not ignore Caltrans’ comment. Instead, the City addressed Caltrans’ request for additional freeway impact analysis by justifying its TIS using the guidelines in the MOU and the LADOT Guidelines.

Petitioners reply that the City’s mere compliance with the MOU and LADOT Guidelines does not excuse evaluation of significant cumulative impacts. East Sacramento Partnerships for a Livable City v. City of Sacramento, (2016) 5 Cal.App.5th 281, 300-01 (regulatory compliance cannot be used to foreclose substantial evidence of significant impact). Petitioners rely on Caltrans’ statement that the Project will generate 2,052 new roundtrips with 173/185 AM/PM peak hour trips, and 1021/171 AM/PM cumulative peak hour trips. AR 2885-86. Reply at 8-9.

Caltrans’ numbers are confusing and appear to be made from whole cloth. There is no evidence or analysis to support its conclusion, and it is unclear how Caltrans generated them. In contrast, the City explained how it concluded that there would be a maximum of 22 trips on the pertinent I-10 segments. Substantial evidence supports the City’s conclusion that the Project will not generate sufficient direct traffic to trigger an additional freeway impact analysis of the I-10 and 110 freeways and ramps under the MOU.

c. Cumulative Traffic Impacts

A discussion of cumulative impacts must include either a “list of past, present, and probable future projects producing related or cumulative impacts, including, if necessary, those projects outside the control of the agency” or a “summary of projections contained in an adopted local, regional or statewide plan, or related planning document that describes or evaluates conditions contributing to the cumulative effect.” Guidelines §15130(b). Comments from responsible experts or sister agencies which disclose new or conflicting data or opinions that cause concern may not simply be ignored. Berkeley Keep Jets Over the Bay Committee v. Board of Port Com’rs, (2001) 91 Cal.App.4th 1344, 1367. There must be good faith, reasoned analysis in response. Ibid.

The July 14, 2014 Caltrans letter stated that there are 1021/171 AM and PM cumulative peak hour trips, and that the Project may result in significant cumulative traffic impact to state highway facilities (I-10 freeway) already operating at or near capacity. AR 631.

The City’s response in the FEIR reiterated that the Project’s traffic contribution to freeway and off-ramp traffic is not large enough to warrant further analysis. AR 2883. The Project does not meet the criteria for regional significance and would not change trip patterns or induce growth of trips regionally. AR 2884. A cumulative impact analysis was undertaken for the surface street intersections, but the number of peak hour trips would not exceed the MOU threshold of 100 peak-hour trips in either direction on the I-10 freeway. As a result, a cumulative impact analysis was not required for the freeways and off-ramps. Id.

On July 21, 2016, Caltrans replied that the MOU’s freeway impact analysis screening criteria only applies to a project’s direct impact, and cumulative traffic impact should still be analyzed. AR 7523. While the Project may not have significant direct impacts to state freeways and ramps, it may contribute to significant cumulative impacts. AR 7524. This may be a significant traffic impact that the City should not avoid. Id. The I-10 and I-110 freeways operate at LOS E or F during peak hours, which should be maintained. AR 7523. In a worst-case scenario, the “related projects’” peak hour trips would result in a 1% or more increase in freeway and ramp traffic. Id. Caltrans observed that there are 82 related projects in the Project vicinity, yet the DEIR only identified five projects in its analysis. Id. Caltrans offered to work with the City to evaluate traffic impacts, identify potential improvements, and establish a mitigation funding mechanism. Id.

The FEIR response explained that the LADOT Guidelines for cumulative surface street impacts require an analysis of trip generation, distribution, and LOS at key intersections and roadways using all planned and approved projects in the vicinity that “would be assumed to be built prior to construction of the project.” Id. A total of five projects were identified,[8] and the estimated traffic volume for these projects was added to the Project’s traffic volumes and the existing traffic volumes, multiplied by a growth factor for small, unknown projects. Id. The resulting traffic volume was used to measure the traffic impact at surface street intersections as required by LADOT policy. Id.

The Project’s contribution to freeways and ramps was determined not to be large enough, and a cumulative impacts analysis of freeways and off-ramps was deemed unnecessary. Id. LOS F criteria were used in the TIS to determine if a freeway impact analysis would be required for the Project. AR 2887. The Addendum to the TIS showed that 22 vehicles in the peak hours would not be significant. The City explained that the Project is a relocation of four light manufacturing facilities to a new location, and the majority of the 351 Project-related trips anticipated already occur in the baseline condition. Id . The Addendum assumed a worst-case scenario in its analysis. Id.

Petitioners contend that the City violated CEQA by failing to analyze cumulative traffic impacts in response to Caltrans’ comments. Pet. Op. Br. at 12. Petitioners assert that the City abused its discretion by giving an unreasonably narrow scope to the requirements of the cumulative impact analysis. Petitioners note that a cumulative impacts analysis must include all “past, present, and probable future projects producing related or cumulative impacts”. Guidelines §15130(b). Yet, the FEIR listed only 11 related projects within a two-mile radius of the Project, excluding the 77 other projects under environmental review that could have been ascertained from the City’s own records. See San Franciscans for Reasonable Growth v. City and County of San Francisco, (1984) 151 Cal.App.3d 61, 77. Pet. Op. Br. at 13.

Respondents contend that the MOU between Caltrans and the City requires a focused freeway impact analysis only if the Project’s peak hour trips would result in a 1% or more increase in freeway mainline capacity. The Project contributes only 22 trips on both directions of I-10 during the peak hour, which is less than the threshold for additional impact analysis. Respondents disagree with Caltrans that cumulative traffic volumes should be considered in deciding whether the 1% threshold has been met because the plain language of the MOU refers to the Project’s peak hour trips, not cumulative peak hour trips. AR 3616. Opp. at 22.

This argument is a red herring. Caltrans did not contend that cumulative traffic numbers should be included in the trigger for an additional impact analysis. Instead, Caltrans argued that the lack of need for a freeway impact analysis is not the entire story. Caltrans’ July 21, 2016 expressly stated that the MOU’s freeway impact analysis screening criteria only applies to a project’s direct impact, and cumulative traffic impact should still be analyzed. AR 7523. According to Caltrans, the City must separately evaluate the Project’s cumulative impact on an overburdened freeway system.

In this regard, Respondents note that the selection of the assessment area for cumulative impact is left to the agency’s expertise. Ebbetts Pass Forest Watch v. Dept. of Forestry and Fire Protection, (2004) 123 Cal.App.4th 1331, 1350-51. The DEIR considered 11 related projects within a 2-mile radius, five of which were in the direct trip path and near geographic proximity and would affect the cumulative impact analysis during the construction period. AR 580. The City considered all projects in the vicinity up to the date that the NOP was issued, and it did not consider the SOLA Village project referred to by Petitioners because the NOP for that project was issued one month after the NOP for the instant Project. Respondents also argue that Caltrans failed to identify any additional projects for cumulative impacts analysis. Opp. at 24.

The DEIR’s cumulative impacts evaluation concerned only the cumulative street traffic impact during the construction period for the Project. For this reason, only 11 projects were selected based on their completion during the Project’s construction period. Neither the DEIR nor the FEIR purported to conduct an analysis of the Project’s overall cumulative traffic impact on the freeway system because the City contended that the MOU threshold was not met by 22 freeway vehicle trips.

In sum, it is clear that the City ignored Caltrans’ comment that cumulative freeway impacts are a separate issue from the additional freeway impact analysis required where direct traffic impacts meet a threshold. The City did not evaluate cumulative freeway impacts because it concluded that 22 vehicle trips during peak hour did not meet the MOU threshold. This was a failure to proceed as required by law. According to Caltrans, the MOU threshold has no bearing on cumulative impacts. Even if it does, compliance with the MOU does not excuse the City from its obligation to evaluate the Project’s long-term cumulative impact on the freeway system in conjunction with other probable future projects within the 2-mile radius used by the City. Guidelines §15130(b). This would require evaluation of more than the five projects scheduled for completion during the Project’s construction.

It may be that the City will find that the 22 peak hour freeway trips generated by the Project will not have a significant cumulative impact with other anticipated projects, but that is not a foregone conclusion. The spate of projects being built in the City without any significant build-out of additional roads and freeways will, no doubt, lead to serious cumulative traffic impacts even if a project’s direct impacts do not. The whole point of a cumulative impact analysis is to evaluate the cumulative burden on the traffic system even where the project considered does not have a significant direct impact.

G. Conclusion

The petition for writ of mandate is granted in part. The City must conduct a cumulative traffic impact analysis for the freeway system using probable future projects within the two-mile radius of the Project. Guidelines §15130(b).

Petitioners’ counsel is ordered to prepare a writ and proposed judgment, serve them on Respondents’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 27, 2018 at 9:30 a.m.

[1] The City and Real Party-in-Interest PIMA Alameda Partners, LLC (“PIMA”) are collectively referred to as “Respondents.” Respondents filed a 19-page joint opposition brief in violation of the court’s order permitting an 18-page brief. Respondents’ counsel is admonished that page limit requirements include the signature page.

[2]As an aid to carrying out the statute, the State Resources Agency has issued regulations called “Guidelines for the California Environmental Quality Act” (“Guidelines”), contained in Code of Regulations, Title 14, Division 6, Chapter 3, beginning at section 15000.

[3] Petitioners request judicial notice of the Los Angeles Metropolitan Transportation Authority’s (“MTA”) 2010 Congestion Management Program (“CMP”) Report (Tsai Decl. Ex. A). Petitioners contend that the CMP may be judicially noticed to show that the MTA and CalTrans are responsible agencies with whom the City should have consulted. The request is granted for this purpose. Evid. Code §452(c). As the City correctly posits, the judicial notice extends only to the existence of the report, not the truth of the matters asserted therein. See Mangini v. R. J. Reynolds Tobacco Co., (1994) 7 Cal.4th 1057, 1063.

Respondents request judicial notice of several sections of the City Charter (Exs. A-C) and the City Municipal Code (Exs. E-I). Respondents’ request is granted. Evid. Code §452(b).

[4] In reply, Petitioners without citation argue that Respondents’ opposition brief concedes that the City Council accepts appeals only from a project’s CEQA determination. Reply at 5.

[5] As Respondents correctly note, Petitioners’ dicta argument is wrong. Clews holding is that an elected decision-making body is not required by CEQA to accept an appeal from project approvals separate and apart from environmental review. 19 Cal. App.5th at 189. Opp. at 15.

[6] Consequently, there is no need to judicially estop Respondents from denying the finality of the Project Approvals. See Reply at 7.

[7] Respondents point out that MTA carries out a ministerial, not discretionary, duty in approving construction activities within 100 feet of its right-of-way as this approval involves a determination of conformity with a fixed standard. AR 650, 664-71. Opp. at 20.

[8] The DEIR determined that there were 11 projects within a two-mile radius of the proposed Project site, five of which were in the direct trip path and near geographic proximity to the Project site such that these related projects could affect the cumulative impact analysis of the Project within the construction period. AR 455, 580.