Opinion
Oakland Harbor Partners, LLC, Signature Properties, Inc., and Reynolds & Brown (collectively Real Parties) are the proponents of a project proposed to be built along Oakland’s estuary. The City of Oakland (the City) certified an environmental impact report (EIR) for the project. Oakland Heritage Alliance (the Alliance) challenged this action, and the trial court granted its petition for writ of mandate, finding, among other things, that the EIR’s discussion of the project’s seismic risks was inadequate. The City revised the EIR and certified it as revised. The trial court then discharged the writ.
The Alliance challenges this action on appeal, contending the City’s treatment of seismic impacts did not meet the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code,
I. BACKGROUND
Real Parties proposed a project to develop approximately 64 acres along the Oakland Estuary and the Embarcadero, converting a maritime and
In its discussion of seismicity, the EIR noted that the project site was approximately three and one-half miles from the Hayward fault zone and 15 and one-half miles from the San Andreas fault zone, both active fault zones capable of generating major earthquakes, and that other faults were also capable of producing significant ground shaking аt the project site. The EIR identified various seismic hazards; of particular relevance here were the potential for strong ground shaking and liquefaction.
In its discussion of ground shaking, the EIR noted that the 1906 San Francisco earthquake, produced by the San Andreas fault zone, had an estimated magnitude of 7.9 and produced strong to violent shaking intensities, and that the 1989 Loma Prieta earthquake, generated by the same fault zone, produced strong shaking intensities. The EIR described the Modified Mercalli (MM) Intensity Scale for the intensity of earthquakes. The highest intensity value is MM-XII. An event with an intensity value of MM-X is described thus: “Some well-built wooden structures destroyed; most masonry and frame structures destroyed with foundations; ground badly cracked. Rails bent. Landslides considerable from riverbanks and steep slopes. Shifted sand and mud. Water splashed (slopped) over banks.” In an earthquake with an intensity value of MM-IX, damage in specially designed structures would be “considerable,” and it would be “great” in “substantial buildings, with partial collapse”; well-designed frame structures would be thrown out of plumb; and buildings would be shifted off foundations. At a level of MM-VIII, damage to specially designed structures would be slight, and to “ordinary substantial buildings” would be “considerable.” At level MM-VII, damage in buildings of good design and construction would be “negligible,” and in “well-built ordinary structures” would be slight to moderate.
Liquefaction occurs when saturated soil is transformed from a solid to a liquefied state, particularly as the result of an earthquake. Ground failure
The EIR identified several seismic impacts of the project. The two at issue here are impacts F.l and F.2. The EIR described impact F.l in this manner: “In the event of a major earthquake in the region, seismic ground shaking could potentially injure people and cause collapse or structural damage to proposed structures.” This impact was designated as “[p] oten dally [significant.” The EIR’s discussion of this impact noted that an earthquake in the Bay Area could produce ground accelerations at the project site ranging from strong (MM-VII) to very violent intensity (MM-X), with a possible intensity of MM-X as a result of a 7.1 earthquake on the Hayward fault. Such an earthquake “would cause considerable structural damage, even in well-designed structures.” Based on a master plan-level geotechnical investigation, the EIR recommended as a mitigation measure: “A site-specific, design level geotechnical investigation for each site area (which is typical for any large development project) shall be required as part of this projеct. Each investigation shall include an analysis of expected ground motions at the site from known active faults. The analyses shall be in accordance with applicable City ordinances and policies and consistent with the most recent version of the California Building Code, which requires structural design that can accommodate ground accelerations expected from known active faults. In addition, the investigations shall determine final design parameters for the walls, foundations, foundation slabs, and surrounding related improvements (utilities, roadways, parking lots and sidewalks). The investigations shall be reviewed and approved by a registered geotechnical engineer. All recommendations by the project engineer and geotechnical engineer shall be included in the final design. Recommendations that are applicable to foundation design, earthwork, and site preparation that were prepared prior to or during the project design phase, shall be incorporated in the project. The final seismic considerations for the site shall be submitted to and approved of by the City of Oakland Building Services Division prior to the commencement of the project.” After mitigation, the EIR concluded this impact would be less than significant.
The EIR also identified impact F.2: “In the event of a major earthquake in the region, seismic ground shaking could potentially expose people and property to liquefaction and earthquake-induced settlement.” This impact was likewise considered potentially significant. According to the EIR, the geotechnical investigation had identified a potential for liquefaction at the site and had recommended specific foundation types and pile specifications to mitigate the adverse effects of liquefaction. The EIR recommended the following
The City certified the EIR, adopted mitigation measures El and F.2, and, with modifications not relevant here, approved the project.
The Alliance filed a petition for writ of mandate alleging numerous violations of CEQA. Among them, the Alliance alleged the City had violated CEQA by certifying the EIR and adopting CEQA findings although the mitigation measures would not reduce the effects of ground shaking, liquefaction, and earthquake-induced settlement to a less than significant level.
The trial court granted in part and denied in part the petition for writ of mandate. On the seismic risk findings, the court found the EIR contained no
In response to the trial court’s order, the City revised the EIR.
The Revised EIR included an extensive discussion of the mandates of various state and City laws bearing upon seismic safety, including the Seismic Hazards Mapping Act (§ 2690 et seq.), the Building Code (which is found in Cal. Code Regs., tit. 24), and various City ordinances.
The Revised EIR explained that for certain large projects, like the proposed Oak to Ninth Project, the applicant conducts a preliminary or “ ‘Master Plan’ ” geotechnical investigation to determine overall engineering feasibility and to inform the preliminary designs. At this stage, geotechnical engineers “acquire a broad understanding of the site conditions while delimiting areas on the site that are especially favorable for development or could be problematic from a soils engineering perspective.” This level of investigation is not sufficient to generate the “ ‘design-level’ ” data needed to make final grading or structural designs. The Revised EIR explained that it was not effective to conduct a design-level investigation at this stage because the project could change considerably during environmental review. However, according to the Revised EIR, this type of preliminary geotechnical study in most cases provides enough detail to evaluate whether geologic or seismic impacts exist and whether mitigation would be necessary. The geotechnical investigation discussed in the Revised EIR was not a final site-specific, design-level study, but rather “determine^] project feasibility in light of the site geotechnical conditions and identified] areas of development opportunity and areas of development constraint.”
The Revisions revised mitigation measures F.l and F.2. As revised, measure F.l, for seismic ground shaking, provided that before the issuance of a building permit for any portion of the project site, the project sponsor “shall” submit a “site-specific, design level geotechnical investigation” for each parcel, which would comply with all applicable state and local code requirements, and “a) Include an analysis of the expected ground motions at the site from known active faults using accepted methodologies; [][] b) Determine structural design requirements as prescribed by the most current version of the California Building Code, including applicable City amendments, to ensure that structures can withstand ground accelerations expected from known active faults; [f] c) Determine the final design parameters for walls,
Revised mitigation measure F.2, for liquefaction and earthquake-induced settlement, likewise required the project sponsor to submit a site-specific, design-level geotechnical investigation, which would comply with all applicable state and local code requirements. The investigation would also: “a) Provide site specific engineering requirements for mitigation of liquefiable soils; [f] b) Specify liquefaction mitigations that shall use proven methods, generally accepted by registered engineers, to reduce the risk of liquefaction to a less than significant level such as: [(J[]—subsurface soil improvement, ffl—deep foundations extending below the liquefiable layers, [1]—structural slabs designed to span across areas of non-support, [f]—soil cover sufficiently thick over liquefaction soil to bridge liquefaction zones, [(K]—dynamic compaction, [f]—compaction grouting, [f]—jet grouting, [and] [f]—mitigation for liquefaction hazards suggested in the [CGS] Guidelines for Evaluating and Mitigating Seismic Hazards (CGS Special Publication 117, 1997), including edge containment structures (berms, dikes, sea walls, retaining structures, compacted soil zones), removal or treatment of liquefiable soils, modification of site geometry, lowering the groundwater table, in-situ ground densification, deep foundations, reinforced shallow foundations, and structural design that can withstand predicted displacements.” This measure also required thе geotechnical investigation to evaluate these mitigations and iden- . tify the most effective and practicable mitigation methods for inclusion in the project plans and to have the identified mitigations reviewed to ensure compliance with CGS geology guidelines related to protection of public safety from liquefaction; that project plans for foundation design, earthwork,
The Alliance submitted a comment letter taking the position that revised mitigation measures F.l and F.2 failed to reduce seismic impacts to a less than significant level. In particular, the Alliance argued that building codes provide for a “ ‘life safety’ ” performance standard, under which building occupants would not be crushed by a collapse of a building in even a severe earthquake, but that buildings might be rendered uninhabitable. According to the Alliance, higher performance standards are already mandated in California for schools, hospitals, police, and emergency response buildings, and such standards could be specified for this project, though at a higher cost than “ ‘code’ performance standards.”
Prior to a public hearing on the Revised EIR, the Alliance submitted further correspondence regarding its concerns about the Revised EIR’s analysis of seismic impacts. The correspondence included a letter by a geotechnical consultant, Alan Kropp. Kropp had reviewed the project description and the geology, soils and seismicity sections of the draft and Revised EIR for the project. He had formed the opinion that it was insufficient for the Revised EIR to “simply rely[] on the Building Code for the subsequent structural design of the facilities.” According to Kropp, “Building Code provisions for earthquake resistive design are generally only intended to avoid building collapse and loss of life in a large earthquake. Major building damage, which may even necessitate the building be demolished after the earthquake, is an acceptable outcome of a code-based design.” Kropp suggested that it would be appropriate instead for the project to use a
After the public hearing, the City approved the Revisions and recertified the EIR as revised by the Revisions and responses to comments. In doing so, it found that revised mitigation measures F.l and F.2 reduced the effects of ground shaking, liquefaction, and settlement to a less than significant level.
The City and Real Parties moved the trial court for an order discharging the writ and terminating the suspension of the project approvals. The trial court granted the motion. In doing so, it concluded the EIR as revised did not improperly defer mitigation of seismic effects, finding “the statutory scheme described in the Revised EIR—designed to address the evaluation and mitigation of earthquake-related impacts—does provide a sufficient standard of performance under CEQA. Further, the Revised EIR commits the City to mediation [sz'c] of seismic impacts by compliance with this statutory scheme (and other specified requirements stated in the mitigation measures), and thus the Revised EIR dоes not improperly defer mitigation in violation of CEQA.” The court also found that substantial evidence supported the City’s finding that the mitigation would reduce seismic impacts to a less than significant level. This timely appeal ensued.
II. DISCUSSION
A. Earthquake Damage to Structures
The Alliance contends the City violated CEQA by failing to evaluate the risk of seismic damage to structures as an adverse impact of the project.
It does not appear that this issue was raised at any earlier stage of the рroceedings, and it has therefore not been preserved for appellate review. (See Bakersfield Citizens for Local Control v. City of Bakersfield (2004)
The Alliance relies on section 15064.7 of the CEQA Guidelines, which encourages public agencies to develop and publish thresholds of significance, and provides that such thresholds adopted for general use in the agency’s environmental review process must be adopted by ordinance, resolution, rule, or regulation after a public review process. (Cal. Code Regs., tit. 14, § 15064.7, subds. (a) & (b).) This regulation does not require a public agency to adopt such significance thresholds, however, and it does not forbid an agency to rely on standards developed for a particular project. Furthermore, even if the City were required to use the CEQA Guidelines’ significance criteria, the threshold of significance used for the project was effectively coextensive with the CEQA Guidelines. The Revised EIR specifies that a project would have a significant seismic effect if it would expose
We also reject the Alliance’s contention that the Revised EIR “sidestepped]” mitigation of earthquake damage to structures. According to the Alliance, although appendix G, and the significance standard set out in the Revised EIR, treat as significant an effect that would expose people or structures to substantial risk of loss, injury, or death involving seismic events, the City did not consider damage to buildings in its anаlysis of seismic effects. The Alliance points out that in its comments on the Revisions, it argued that building codes provide for a “ ‘life safety’ ” performance standard, which the Alliance claimed, “discourage[s] design and construction to higher performance standards, such as immediate reoccupancy.” According to the Alliance’s comment letter, “ ‘Life safety’ means that in an earthquake of likely intensity and duration, even a severe one, building occupants would not be crushed by the collapse of the building, or by debris falling from the building. Life safety contemplates that the structure and/or critical systems of a building may nevertheless be severely damaged, rendering it uninhabitable.” The City responded that “[t]he standard of significance for potential seismic impacts is the exposure of people or structures ‘to substantial risk of loss, injury or death.’ Compliance with the stringent life safety requirements of state law will reduce to a less-than-significant level the substantial risk of building loss and injury or death. [The Alliance] recognizes this effect of the building codes by stating, ‘ “Life safety!”] means that in an earthquake of likely intensity and duration, even a severe one, building occupants would not be crushed by the collapse of the building or by debris falling from the building.’ This result meets the significance criterion of substantially reducing the risk . . . that occupants would be injured or killed. There is no CEQA requirement to avoid repair to structures or to ensure that all buildings can be occupied immediately after an earthquake.” The Alliance contends thе City failed to proceed in the manner required by law “by avoiding—and therefore failing to analyze and evaluate—mitigation of structural damage impacts.”
The parties disagree on whether we should review this claim de novo or whether we should determine only whether there is substantial evidence to support the City’s determination that the seismic impacts of the project are less than significant after mitigation. “ ‘In reviewing an agency’s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry “shall extend only to whether there was a prejudicial abuse of discretion.” (Pub. Resources Code, § 21168.5.) Such an abuse is established “if the agency has not proceeded in a manner required by law or if the
“ ‘The substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.’ [Citation.] Substantial evidence is defined in the CEQA Guidelines [fn. omitted] as ‘enough relevant information and rеasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’ ([Cal. Code Regs., tit. 14,] § 15384, subd. (a).)” (San Joaquin Raptor, supra,
We do not read the Revised EIR as ignoring impacts to structures. Mitigation measure F.l required the investigation for each development parcel to “[determine structural design requirements as prescribed by the most current version of the California Building Code, including applicable City amendments, to ensure that structures can withstand ground accelerations expected from known active faults,” and mitigation measure F.2 required the project sponsor to submit a site-specific, design-level geotechnical investigation that would use proven methods to reduce the risks associated with liquefaction to a less than significant level, and listed a number of possible methods, including subsurface soil improvement, deep foundations, and structural slabs. Whether these mitigations were in fact sufficient to reduce
We do not accept the premise imрlicit in the Alliance’s argument, that under CEQA, as a matter of law, seismic impacts are significant unless buildings could be repaired and ready for occupancy after a major earthquake. Nothing in CEQA, the cases interpreting it, or common sense compels such a conclusion. A less than significant impact does not necessarily mean no impact at all. (See National Parks & Conservation Assn. v. County of Riverside (1999)
We are not persuaded otherwise by the Alliance’s reliance on Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001)
B. Substantial Evidence
We next consider whether substantial evidence supports the City’s finding that seismic impacts have been mitigated to a less than significant level. The Alliance argues that the Revised EIR requires only “code compliance and ‘good practice,’ ” and that the evidence does not shоw that code compliance would mitigate structural damage to a less than significant level. In evaluating this contention, we bear in mind that we “may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. [Citation.] A court’s task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988)
1. The Revisions to the EIR and Supporting Evidence
According to the Revised EIR, “[s]tate and local code requirements ensure buildings are designed and constructed in a manner that, although the buildings may sustain damage during a major earthquake, will reduce the substantial risk that buildings will collapse resulting in a potential for injury or death.” Because the project is in a liquefaction zone, it must comply with the Seismic Hazards Mapping Act and the guidelines for evaluating and mitigating liquefaction hazards prescribed under “CCS Special Publication 117,” which contains the “methods and prоcedures” for evaluating seismic hazards related to ground shaking and determining mitigation methods that “the State Mining and Geology Board, the Seismic Hazards Mapping Act Advisory Committee, and its Working Groups believe are currently representative of quality practice.” Furthermore, under California Code of Regulations, title 14, section 3724, a regulation promulgated under the Seismic Hazards Mapping Act, a project may be approved only when its seismic hazards have been evaluated in a geotechnical report prepared by a registered civil engineer or certified engineering geologist, and appropriate mitigation measures proposed.
According to the Revised EIR, the preparers of the EIR relied on the Draft Geotechnical Investigation prepared for the Oak to Ninth District Master Plan in 2002 by Treadwell & Rollo (Geotechnical Investigation).
According to the Revised EIR, all the methods suggested in mitigation measures F.l and F.2 were “standard engineering approaches, which are accepted in the geotechnical engineering community and proven on sites throughout California.” Moreover, CGS Special Publication 117, Guidelines for Evaluating and Mitigating Seismic Hazards in California, contained “guidelines for mitigation measures developed by experienced geotechnical practitioners based on extensive research about effective geotechnical solutions.”
2. Substantial Evidence Supports the City’s Findings
The Alliance contends this evidence is insufficient to support the City’s findings that revised mitigation measures F.l and F.2 reduced the effects of ground shaking, liquefaction, and settlement to a less than significant level.
We are guided in our analysis by Tracy First v. City of Tracy (2009)
The Alliance relies on Californians for Alternatives to Toxics v. Department of Food & Agriculture (2005)
Two other points about the evidence the Alliance submitted are also pertinent. First, as we have noted, even the newsletter the Alliance submitted shows that performance-based seismic design guidelines are still being developed. This evidence does not show that standards currently exist that would increase the seismic safety of the project. Even if it were appropriate for us to reweigh the evidence, we would not be persuaded by the Alliance’s contention. Particularly in light of the preliminary nature of the performance-based guidelines the Alliance advocates, the choice of seismic construction standards is properly treated as a policy decision. Second, the evidence the Alliance submitted also indicates structures designed in conformity with current seismic design codes can be expected to resist minor earthquakes without damage, resist moderate earthquakes without structural damage, and resist major earthquakes without collapse, but possibly with some structural damage; even in a major earthquake, however, the structural damage would be reparable. This evidence undercuts the Alliance’s argument that the codes’ standards are inadequate to protect structures from the effects of earthquakes. We see no abuse of discretion in a conclusion that conformity with the current building standards, as discussed and elaborated in the Revised EIR, in conjunction with the other requirements specified in the Revised EIR, adequately mitigated the seismic impacts of the project.
The Alliance contends the City improperly deferred mitigation of the seismic effects of the project. According to the Alliance, the EIR leaves to thе future the formulation of mitigation measures for seismic impacts, and fails to set objective performance standards for such mitigation.
“[I]t is improper to defer the formulation of mitigation measures until after project approval; instead, the determination of whether a project will have significant environmental impacts, and the formulation of measures to mitigate those impacts, must occur before the project is approved.” (California Native Plant Society v. City of Rancho Cordova (2009)
Furthermore, a condition requiring сompliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance. (Sundstrom, supra,
Applying these standards, we conclude the City did not improperly defer mitigation. The Revised EIR discussed the statutes and regulations aimed at increasing seismic safety. It explained that the Seismic Hazards Mapping Act establishes a statewide public safety standard for mitigation of earthquake hazards, and that the minimum level of mitigation for a project “should reduce the risk of ground failure during an earthquake to a level that does not cause the collapse of a building intended for human occupancy,” though generally not to a level of no ground failure to all. Moreover, the Building Code establishes standards for seismic safety in the design and construction of buildings, and includes “significant building design and construction criteria that have been tailored for California earthquake conditions.” It “provides standards that must be met to safeguard life or limb, health, property, and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy,- location, and maintenance of all buildings and structures within its jurisdiction.”
The Revised EIR reported that chapter 18 of the Building Code “specifies the required level of soil investigation.” It contains requirements applicable to buildings and foundations, which take into consideration “reduction of potential seismic hazards.” The project site included soils that were vulnerable to liquefaction, as well as more “competent” soils. Under the Building Code, the investigation of soils vulnerable to liquefaction must include “[a] determination of lateral pressures on basement and retaining walls due to earthquake motions . . . [f] . . . [and] [a]n assessment of potential consequences of any liquefaction and soil strength loss, including estimation of differential settlement, lateral movement or reduction in foundation soil-bearing capacity, and shall address mitigation measures.” (Cal. Code Regs., tit. 24, § 1802.2.7.) As the Revised EIR noted, those measures could include “ground stabilization,
The Revised EIR also dеscribed the City’s building ordinances aimed at mitigating seismic and other geologic hazards. Among other things, those ordinances required developers to file soil reports, prepared by a state-registered civil engineer, indicating any soil characteristics that might create hazards and identifying measures to avoid soil hazards. According to the Revised EIR, the City’s municipal code also required the subdivider to file with the city engineer a preliminary soil report, prepared by a registered civil engineer, specifying what measures were necessary so any proposed grading would result in reasonably stable slopes, stating whether critically expansive soils were present, indicating whether any other soil characteristics might create hazards or problems, and recommending what measures were necessary to avoid those hazards or problems. In addition, before the subdivision improvements were accepted, the civil engineer must certify that the grading work was done in accordance with the recommendations in the preliminary report, that the slopes were reasonably stable against sliding, and that adequate measures had been taken to prevent erosion. The certificate must also state the magnitude of the settlements that were likely to occur, the allowable loads or bearing pressures which might be imposed, that compaction was adequate for the uses proposed for the property, and any limitations which should be imposed on the development of the property because of soil conditions, including the designation of areas that are unsafe for building. Moreover, if the preliminary report indicated the presence of soil problems that would lead to structural damage, a registered civil engineer must make a soil investigation of each lot after grading, and submit a report “recommending corrective action which is likely to prevent structural damage to each structure proposed to be constructed in the subdivision.”
The Revised EIR also discussed the responsibilities of the engineers and building officials and the processes to ensure that site investigations, grading, and construction are completed in accordance with the laws designed to protect the public and property from the effects of earthquake shaking and
The Revised EIR explained that the preparers of the EIR relied on the Geotechnical Investigation, which “determine[d] project feasibility in light of the site geotechnical conditions and identifie[d] areas of development opportunity and areas of development constraint.” According to the Revised EIR: “The geotechnical investigation included 12 test borings, 34 cone penetrations [to determine strength characteristics of the soil], and laboratory testing of soil samples. Seismic considerations examined in the geotechnical investigation included strong ground shaking, ground rupture, liquefaction, lateral spreading, and differential compaction. The geotеchnical investigation identified areas that could present significant ground failure hazards beneath proposed structures during an earthquake, which include[], the presence of undocumented artificial fills and soft compressible Bay Muds. Based on the data collected and engineering analysis, the geotechnical investigation deterr mined the estimated settlement that could be expected across the site. Specifically, the geotechnical investigation determined that deep foundation systems would be required for the foundation of all substantial structures in the proposed project and surface foundation systems would not be adequate for any structures, other than very small non-habitable structures. The geotechnical investigation also determined that deep foundation systems would be necessary to anchor the foundations of project buildings into more solid materials which are found at depths below the Bay Mud.” (Fns. omitted.) According to the Revised EIR, the Geotechnical Investigation included “[njumerous requirements for installing these foundations,” as well as other measures (discussed above), which were “accepted and proven engineering
The Revised EIR concluded that “[cjonsidering the rigorous investigation process required under the engineering standard of care, compliance with state laws and local ordinances, and regulatory agency technical reviews, the mitigation measures presented in F.l and F.2 will reduce the risk of seismic hazards and ensure that impacts associated with development [of the] Oak to Ninth Project area would remain less than significant.” It is in light of this background discussion that we evaluate whether mitigation measure F.l, for seismic ground shaking, and F.2, for liquefaction and earthquake-induced settlement, impermissibly defer mitigation of seismic impacts.
These mitigation measures appear to us to fall squarely within the rule of CNPS that “when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts,” and has committed to mitigating those impacts, the agency may defer precisely how mitigation will be achieved under the identified measures pending further study. (CNPS, supra,
This reasonable expectation distinguishes this case from those upon which the Alliance relies. The Alliance draws our attention to another portion of
Recently, this division considered deferred mitigation in Communities for a Better Environment v. City of Richmond (2010)
Accordingly, we conclude the Revised EIR does not impermissibly defer mitigation of seismic impacts.
IH DISPOSITION
The order granting the motion to discharge the writ is affirmed.
Ruvolo, R J., and Sepulveda, J., concurred.
Notes
All statutory references are to the Public Resources Code.
With an earthquake with an intensity of MM-XI, “[f]ew, if any, (masonry) structures remain standing. Bridges destroyed. Broad fissures in ground. Underground pipelines completely out of service. Earth slumps and land slips in soft ground. Rails bent greatly.” With an event with an intensity value of MM-XII: “Damage [is] total. Practically all works of construction are damaged greatly or destroyed. Waves seen on ground surface. Lines of sight and level are distorted. Objects are thrown upward into the air.”
The City prepared and circulated “Revisions to the Analysis in the Oak to Ninth Project EIR” (Revisions). We shall refer to the EIR as revised by the Revisions as the “Revised EIR.”
An attached April 2008 newsletter from the National Earthquake Hazards Reduction Program noted that in recent years a “performance-based approach to design and construction” had emerged, under which “individual buildings or classes of structures can be designed to perform at levels commensurate with applicable hazards, risks, and risk tolerances.” The newsletter stated, “As it relates to seismic design, this approach has been termed Performance-Based Seismic Design (PBSD). Development of PBSD began in the mid-1990s, largely for use in evaluating and upgrading existing buildings.” The Federal Emergency Management Agency (EEMA) had been leading efforts to develop a “new generation of PBSD procedures,” and had completed a report (FEMA 461) describing laboratory testing protocols that could be used to determine the “fragility functions” of various building systems and components. According to the newsletter, “[fragility functions express in mathematical terms the likelihood that a component will sustain a specified level of damage when exposed to a specified level of demand (e.g., force, acceleration, displacement). . . . [U Next-generation PBSD procedures are being developed so that building stakeholders can reliably know, before choosing from among design options, how those options will affect seismic performance.” The protocols in FEMA 461 were intended as “interim methods that will be finalized over time as they are used and evaluated by researchers nationwide.”
The CEQA guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.; CEQA Guidelines) implement the provisions of CEQA. (Jones v. Regents of University of California (2010)
The significance criterion set forth in appendix G asks whether the project would “[ejxpose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death” from seismic activity.
“ ‘An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: the appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo. [Citations.]’ [Citation.]” {Jones, supra,
The 2007 Building Code was in effect when the Revised EIR was prepared. Unless otherwise noted, citations to the Building Code will be to the 2007 version of the code.
The 2007 version of the Building Code contained a number of other pertinent provisions. As the Revised EIR noted, California Code of Regulations, title 24, section 1802.7.2 required the engineering geologic report to include “[g]round-motion parameters, as required by Section 1613 . . . .” Section 1613.1 of the 2007 Building Code, in the “Structural Design” chapter, provides that, with certain exceptions, “[e]very structure and portion thereof . . . shall be designed and constructed to resist the effects of earthquake motions .. . .” The ensuing sections contain technical site class definitions (Cal. Code Regs., tit. 24, table 1613.5.2), site coefficients and adjusted maximum considered earthquake spectral response acceleration parameters
The Geotechnical Investigation is included in the record.
According to the Revised EIR, registered geotechnical engineers are required to “comply with the [Building Code] and local codes while applying standard engineering practice and the appropriate standard of care for the particular region in California, which, in the case of the proposed project, [is] the San Francisco Bay Area.”
The Alliance draws our attention to the recent case of California Oak Foundation v. Regents of University of California (2010)