(Santa Clara County Super. Ct. No. CV127528)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
In this California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)*fn1 case, the superior court granted a peremptory writ of mandate compelling the City of Sunnyvale City Council ("City Council") to set aside its October 28, 2008 approval of the proposed Mary Avenue Extension (MAE) Project and its certification of the Final Environmental Impact Report (FEIR). The FEIR used projected traffic conditions in the year 2020, based on expected growth under the City of Sunnyvale's general plan and in neighboring communities, as its "baseline" to evaluate the roadway project's traffic and related impacts. The FEIR did not consider the project's traffic and related impacts on the existing environment.
The City Council appeals, arguing that the EIR's "use of 2020 conditions as a baseline offers the most accurate and informative portrayal of the environmental impact of the MAE." Respondents Sunnyvale West Neighborhood Association and named individuals maintain that the impacts of the project must be measured against current, existing physical conditions and a comparison against "a baseline as it might exist in 2020 cannot substitute for a comparison with current, existing conditions."
Respondents sought to compel the City Council to set aside its approval of the MAE Project until a legally adequate EIR had been prepared and considered. Respondents filed a petition for writ of mandate, alleging, among other things, that the EIR prepared for the project was legally deficient because it used a 2020 "baseline" for assessing the project's impacts.
The superior court granted the petition. It concluded that the administrative record did not contain substantial evidence supporting the city's decision to deviate from the normal procedure of using a baseline of current environmental conditions and to instead "use estimates of the conditions in the year 2020 that assumed a complete build-out of projects in the City's General Plan." The superior court further concluded that this decision "constituted a failure to proceed in the manner required by law." It determined that the "decision had the effect of minimizing potential project impacts on traffic, noise, and air quality and tainted the comparison of the proposed project with project alternatives."
The court stated that, under cited case law, deviation from normal procedures is limited to "unusual circumstances properly documented in an administrative record." It found that the situation in this case resembled the circumstances in Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683 ("Woodward").
In Woodward, the City of Fresno had approved new commercial development on vacant land based upon an EIR that "in many instances" "evaluate[d] environmental impacts by comparing the project's impacts with those of the maximum buildable development under existing zoning and plan designations." (Id. at p. 707.) The appellate court in Woodard agreed that the EIR would have been legally sufficient if it had "evaluated the proposed project's impacts in relation to both a vacant lot and a large development permissible under existing zoning and plan designations." (Ibid.) It also determined, inter alia, that "[t]he EIR's air pollution discussion" was inadequate because "it proceed[ed] from the wrong environmental baseline, assessing the project's impacts as slight because they are not much greater than the impacts of a built-out development under pre-existing zoning and plan designations." (Id. at p. 731.)
Here, the superior court further explained its decision: "The only grounds advanced by Respondent to justify the use of projections for the year 2020 as the environmental baseline in the EIR are that such projections are used by the Santa Clara Valley Transportation Authority ('VTA') in its Transportation Impact Analysis Guidelines (2004), as part of the VTA's responsibilities under the Congestion Management Law (Gov. Code, §§ 65088-65089.10), and that the proposed MAE would not be complete and in use until the year 2020. . . . As to the latter, there is not substantial evidence in the record establishing when the proposed project would be complete and statements by city personnel in the record are inconsistent. As to the former, efforts undertaken by the VTA and local governments to comply with the Congestion Management Law are irrelevant to whether a proposed project complies with CEQA."*fn2 (Fn. omitted.)
The superior court in this case further stated that "[e]ven if Respondent's claim (presently unsupported by substantial evidence) that there is little or no practical difference in project impacts measured against present conditions versus 2020 estimates proves correct, that does not justify the decision to use 2020 as a baseline in the EIR without an analysis of present conditions." The court granted a peremptory writ of mandate, ordering the City Council to set aside its approvals of the MAE Project and its certification of the FEIR and desist from any further action to approve the project without prior preparation and consideration of a legally adequate document using current conditions as a baseline.
B. Relevant Administrative Record
The August 2007 draft EIR states that Mary Avenue presently extends north from Homestead Road in south Sunnyvale and terminates at Almanor Avenue just south of U.S. 101; it provides local access to residential and commercial properties in Sunnyvale. The proposed project involves a four-lane northerly extension of Mary Avenue over U.S. 101 and SR 237 to Eleventh Avenue at E Street. It includes construction of a bridge over the two freeways and light rail transit tracks. The stated objectives of the project are to provide an alternative "north-south connector to lands north of US 101 and SR 237 (including the Moffett Park area)" and to "[a]lleviate existing and future traffic congestion in the Moffett Park area and other areas adjacent to Mary Avenue."
The draft EIR separately discusses the project's impact in 12 categories, including but not limited to transportation, noise, and air quality.*fn3 It also contains sections on the project's growth-inducing impacts and cumulative impacts.
In the section concerning transportation impacts, the draft EIR describes the existing roadway network. It also contains tables indicating the existing traffic conditions in terms of the average traffic volume on particular roadway segments and the qualitative level of service (LOS)*fn4 at certain intersections and on certain freeway segments. The draft EIR then describes "future transportation conditions in the year 2020 in the project area without the proposed extension of Mary Avenue" using the city's traffic demand model. According to the draft EIR, this model "accounts for both existing traffic as well as future traffic based on the buildout of the land uses identified in the adopted Sunnyvale General Plan" and for "projected growth in neighboring jurisdictions" affecting traffic volumes on Sunnyvale streets. In analyzing the transportation impacts, the draft EIR assumes numerous roadway improvements in the project area to be in place by the year 2020 regardless of the proposed project.
Table 2.6 compares average daily trips (ADT's) on various segments of Mary Avenue and surrounding roadways. As to each roadway segment, it specifies the number of ADT's under current circumstances, under projected conditions in 2020 without the project, and under projected conditions in 2020 with the project. The table does not provide information about the ADT's under existing conditions with the project and therefore, no direct comparison can be made to the existing conditions without the project. The table states the percent change in traffic volume from the "2020 no project" scenario to the "2020 project" scenario. The draft EIR explains that the table's data indicates that the "future traffic volumes would be substantially greater than existing ADT volumes" and stated that "[s]uch increases are the result of planned growth in Sunnyvale and the surrounding areas" and "[t]his increase will occur irrespective of any decision to approve the proposed Mary Avenue Extension."
The draft EIR describes a number of thresholds of significance*fn5 with regard to transportation impacts, including the following two. It states that a transportation impact is significant if the project would "[c]ause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e. result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)" or if the project would "[e]xceed, either individually or cumulatively, a level of service standard established by the county congestion management agency or the City of Sunnyvale for designated roads or highway." (Italics added.) The draft EIR emphasizes that the "proposed project is designed to accommodate existing and projected traffic demand" and "would not change overall traffic volumes in the area." It further states that "because the project consists of a new north-south roadway connection, its primary effect will be to change the traffic distribution in the area."
The draft EIR discusses the 2020 traffic volumes with the project and reiterates that "the project will redistribute traffic in the area since it will provide an alternative north-south connection across two major freeways." It notes that the major effects of the project in terms of increased traffic volume would occur on Mary Avenue north of Central Expressway and minimal change in traffic patterns are expected south of Central Expressway. In addition, it states that the project would cause some traffic to shift from Mathilda Avenue, a major north-south arterial roadway, to Mary Avenue. It indicates the project's impacts on traffic volume would not be significant.
The projected LOS in 2020 with and without the project are compared to determine the impact on intersection operations. The draft EIR states, and the data reflects, that the project would generally improve intersection operations with some exceptions under 2020 conditions. The table comparing intersection LOS with and without the project in the year 2020 indicates minimal change on Mary Avenue at the Central Expressway intersection and at more southerly intersections. The draft EIR concludes that the project would cause a significant deterioration in operations at one intersection (Mary Avenue/Maude Avenue) during the PM peak hour. It identifies a mitigation measure to reduce that impact to a less than significant level. Otherwise, no significant transportation impacts are found.
The draft EIR's section regarding noise impacts explains that "[n]oise is measured on a 'decibel' scale." It states that "[f]or traffic noise, ten times as many vehicles per hour results in ten times as much sound energy, resulting in a ten-decibel increase, and perceived doubling of loudness" while "[t]wice as many vehicles per hour means twice the sound energy, resulting in a three-decibel increase, and a just-noticeable increase in loudness." It indicates that "[t]wenty-six percent more vehicles per hour" would result "in a one-decibel increase, usually considered to be an imperceptible increase in loudness." In addition, it explains: "The speed of traffic also affects noise levels: for every five mph increase in speed there is a 1 to 2-decibel increase in average noise levels."
The stated thresholds of significance for noise impacts include "[a] substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project." The draft EIR indicates that it is using the city's General Plan definition of significant noise impact from new development, under which a project-caused noise increase of more than 5 dBA*fn6 is significant if existing and post-project noise levels are in the "normally acceptable" category and a project-caused noise increase of more than 3dBA is significant if "the existing noise level on the site is in the 'normally acceptable' category but the post-project noise level on the site exceeds the 'normally acceptable' category"or if "the existing noise level on the site exceeds the 'normally acceptable' category . . . ."
The draft EIR describes the existing noise conditions and indicates ambient noise measurements were made. It states that "traffic-related noise exceeds the City's General Plan goal of having an outdoor Ldn no greater than 60 dBA at residences.*fn7 A table summarizing ambient noise measurements taken in the project vicinity shows existing noise levels range from 64 to 69 dBA Ldn..
The draft EIR discusses the construction-related noise impacts in relation to the existing ambient noise environment. In assessing the long-term noise impacts, however, the draft EIR compares "future 2020 traffic volumes without the project and future 2020 traffic volumes with the project" and calculates "noise level increases resulting from the build-out of the General Plan and as a result of the project plus General Plan build-out." The draft EIR considers the long-term noise impacts with regard to the "nearest residential receivers" for whom noise levels were expected to increase "about four to six dBA Ldn by the year 2020" without the project. It concludes, based on future 2020 traffic volumes, that the proposed project "would be responsible for a traffic noise level increase by less than one dBA Ldn above the noise levels expected as a result of General Plan build-out" (italics added), which "would not be measurable or perceptible, and would not exceed the significance criterion of three dBA Ldn established by the City of Sunnyvale" and "[f]or this reason, project-generated traffic would not result in significant noise impacts."
As to air quality, the draft EIR explains that "[b]oth ozone and PM10 [particulate matter with a diameter of less than 10 micrometers] are considered regional pollutants in that concentrations are not determined by proximity to individual sources." It recognizes that carbon monoxide is "a local pollutant because elevated concentrations are usually only found near the source." It reports that the Bay Area is considered in nonattainment for both ozone and PM10.
The draft EIR sets forth thresholds of significance for air quality impacts.*fn8 In discussing long-term air quality impacts, the draft EIR explains that the "project would provide an alternative to the existing north-south connections in the City and help alleviate regional operation deficiencies." It states that "[t]he proposed project would accommodate existing and future traffic rather than generate traffic." The draft EIR finds no significant long-term air quality impacts for the following reasons. The first is that "[t]he proposed project would improve long-term air quality by providing an alternate north-south route of travel as well as alleviating congestion on existing north-south connections such as Mathilda Avenue." The second is that carbon monoxide would not "exceed standards along Mary Avenue" based on published data from the Bay Area Air Quality Management District ("BAAQMD").
The draft EIR's discussion of growth-inducing impacts of the MAE project reports that "[t]he proposed project will likely have an indirect growth-inducing effect since it increases the capacity of the area's transportation network" and "[t]o the extent that the provision of an adequate transportation network is essential to growth, the lack of such capacity is a constraint to growth." It further states: "The environmental effects of growth would generally include increased traffic, noise, air pollution, and water pollution."
As to cumulative traffic impacts, the draft EIR states that the "proposed project would not generate any new traffic, and therefore, would not contribute to the cumulative increase in the traffic in the project area." It again indicates that the traffic analysis for the project had "utilize[d] the City's traffic forecasting model, which takes into account existing traffic, as well as any increases in traffic from future planned development" and states that this "methodology accounts for the effects of cumulative growth in the project area." As to cumulative noise impacts, the draft EIR states: "The largest source of increased noise in the immediate project area is motor vehicle traffic. Cumulative traffic-related noise will continue to increase as traffic volumes increase . . . ." The discussion regarding cumulative air quality impacts addresses the short-term construction-related air quality impacts but says nothing about the long-term cumulative impacts.
The draft EIR considers a number of alternatives to the proposed MAE Project. The discussion regarding the "no project" alternative is brief, stating in summary that "although the No Project Alternative would avoid all significant environmental effects of the proposed project, it would not meet any of the project objectives." A table compares delay and LOS at various intersections under existing conditions without the project and under future traffic conditions in 2020 without the project, with the project, and with two alternatives.
The administrative draft Final EIR was submitted for peer review to Amy Skewes-Cox, an environmental planner. She stated in a September 2, 2008 letter to Jack Witthaus, the Transportation and Traffic Manager in the city's Department of Public Works, that her "greatest concern" was whether the EIR had adequately "evaluated the project's impacts as related to the 'existing condition.' " She stated: "Using the base year of 2020 can underestimate the impacts, especially if the project is constructed before that year. Project impacts should be more correctly shown in relation to current day conditions, especially as related to noise, air quality, and traffic. Any future comparisons (i.e. 2010 or 2020) could be additionally done, but should be secondary to comparing existing conditions." As to the provision of master responses to public comments in the Final EIR, she advised: "A master response should also address the standards of significance for air quality impacts and the various thresholds. . . . If the City decides to compare project impacts to existing conditions, there could be significant impacts with increased traffic on this corridor. If these cannot be mitigated, the City may need to make Findings of Overriding Consideration related to air quality impacts. (Note: the same may apply for noise impacts if this changed methodology occurs[.])" She also warned that "recirculation may be necessary because the 'Existing' condition should be the basis of comparison for the project and new, significant impacts may be identified."
Witthaus responded to the peer reviewer's comments in an October 18, 2008 letter. He explained: "The traffic impacts of the project were evaluated against future 'background' conditions in accordance with the procedures described in VTA's Transportation Impact Analysis Guidelines (2004). These guidelines were adopted for use by all of the cities in Santa Clara County. The guidelines state that projects should be compared to background conditions, which is defined as existing traffic plus traffic from approved projects. For an infrastructure improvement project such as the Mary Avenue Extension, 'approved' projects are those that will be constructed per the adopted land use plans of Sunnyvale and the surrounding jurisdictions. This approach is utilized because it provides full disclosure of the reasonably foreseeable consequences of a project such as the extension of Mary Avenue. [¶] The future horizon year of 2020 was chosen because it approximates the time when the Mary Avenue Extension, if approved, would be open to traffic. . . . [T]here is currently no funding for the project. Even assuming full funding becomes available in the next few years, an assumption which is questionable in the current transportation funding environment, it would take several years to design and construct the project." He also asserted: "The City believes that utilizing the 2020 scenario best describes the reasonably foreseeable consequences of the project, and better represents the true time frame that this project may be realized. It is also the approach outlined in VTA's guidelines for preparation of Transportation Impact Analyses."
Witthaus's response also included a table, which showed the average daily traffic volumes for segments of Mary Avenue and other affected roadways, with and without the project under current conditions, and which stated the percent change compared to the existing traffic volume. His letter explained that the table "shows how . . . traffic would be redistributed if the Mary Avenue Extension was in place today." The table showed the following percent increases in volume over the existing traffic volumes: 220 percent on Mary Avenue south of Almanor Avenue (resulting in more than three times existing volume), 94 percent on Mary Avenue north of Maude Avenue (resulting in close to two times existing volume), 23 percent on Mary Avenue south of Maude Avenue, 17 percent on Mary Avenue north of Central Expressway, and 75 percent on Almanor Avenue east of Mary Avenue (resulting in 1.75 times existing volume) if the project were built today. The table indicated that the project would additionally generate an average daily traffic volume of 7,400 on the new Mary Avenue extension north of Almanor Avenue. The underlying methodology used to determine those figures was not explained. No data was presented regarding the project's impact on intersection delay or LOS under existing conditions without the other assumed roadway improvements.
Witthaus stated, under either the present scenario or the 2020 scenario, the project resulted in "notable changes in traffic volumes" to the same roadway segments. Without any supporting analysis, he stated that "comparing this 'Existing Condition Project' scenario to the 'Existing' condition does not result in any significant traffic impacts."
As to noise, Witthaus responded that there were no residential streets where the project would result in 3-dB increase in noise and, as to air quality, he indicated that "since the EIR concludes that the higher 2020 [traffic] volumes would not result in significant air quality impacts . . . the same conclusion can be reached for the data represented in the attached table."
By letter dated October 17, 2008, the peer reviewer replied. Although she expressed some understanding of Witthaus's rationale for using the 2020 traffic conditions, she stated that, based upon her CEQA experience, assessing project impacts in light of assumed "background" conditions rather than the "existing" conditions "may not comport with the CEQA Guidelines . . . ." She acknowledged that the city's methodology in selecting 2020 "would seem to comport with the VTA Guidelines," but she ...