SACRAMENTO OLD CITY ASSOCIATION еt al., Plaintiffs and Appellants, v. CITY COUNCIL OF SACRAMENTO, Defendant and Respondent.
No. C007769
Third Dist.
Apr. 30, 1991.
229 Cal. App. 3d 1011
Kathryn Burkett Dickson, Jeffrey A. Ross, Gay C. Danforth and Trent W. Orr for Plaintiffs and Appellants.
James P. Jackson, City Attorney, and Evelyn M. Matteucci, Deputy City Attorney, for Defendant and Respondent.
OPINION
DECRISTOFORO, J.*—Plaintiffs Sacramento Old City Association, Elaine Hamby, and Susan Steinsapir (SOCA) appeal from the denial by the Sacramento Superior Court of a writ of mandamus sought pursuant to the California Environmental Quality Act (CEQA). In their writ petition, SOCA sought to set aside the decision of defendant, City Council of Sacramento (the City) to expand the downtown Sacramento Convention Center complex (the center) and to construct an office tower at 1325 J Street (the office tower). Plaintiffs also sought an injunction against the future demolition of the Merrium Apartments until the City prepares an adequate environmental impact report (EIR) on the project. On appeal, plaintiffs argue the EIR approved by the City is inadequate under CEQA. Plaintiffs contend the EIR is deficient because: (1) the EIR fails to adequately address mitigation of parking and traffic impacts; (2) the EIR contains insufficient findings concerning parking and the destruction of the Merrium Apartments.1
We find the record supports the City‘s certification of the community center expansion. Therefore, we shall affirm the judgment.
* Retired Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.
In 1987, the City proposed an expansion of its existing community convention center, located in downtown Sacramento. After considering various studies, the City determined the existing center was unable to attract and accommodate its full potеntial of convention-related events. This failure was partially based on size constraints of the existing center.
The City also sought, by enlarging the existing center, to further its goal of the revitalization of downtown Sacramento. As part of this downtown revitalization, the City proposed the development and support of an entertainment/hotel district in downtown Sacramento, expanding outward from the existing center. In a report, the City noted, “it has been broadly agreed that this district should be such that the performing arts, restaurants and retail establishments can all flourish. An expanded convention capability will serve to provide increased financial support to these activities, in addition to existing local support. [[] Indeed, the location of an expanded, vital, Community/Convention Center in the entertainment/hotel district will serve to counteract those forces currently drawing development away from the central core, and will allow these sought after downtown activities to thrive.” The City began formal consideration of expansion of the center.
Subsequently, the City‘s Planning and Development Department received applications from several developers for special permits to allow construction of high-rise office towers within a block of the center. The City, citing the geographic proximity of the office towers to the center and the resulting interrelated environmental issues, decided to prepare a single EIR, covering the proposed office towers and the expansion of the center.2
The City commissioned a marketing analysis to provide space planning requirements for the proposed center expansion. This analysis recommended an additional 140,000 gross square feet of exhibit, meeting and ballroom space and additional loading dock facilities in order to realize the center‘s full market potential. The analysis proposed no specific design for the expansion.
The City considered 5 design alternatives for the proposed expansion: north (175,000 additional square footage); east (130,000 additional square footage); west (135,000 additional square footage); a SOCA alternative (210,000 additional square footage); and a no-project alternative.
Several public hearings were held on the draft EIR. In addition, written comments were submitted to the City, and ultimately incorporated into the final EIR. At the public meetings numerous questions were raised regarding the potential impact of traffic and parking on downtown Sacramento. The City was also questioned regarding the lack of specific mitigation measures to alleviate the impact of parking. The City responded that it was too soon in the design process of the center to make specific recommendations.
Following the meetings, on October 4, 1988, the City certified the EIR as complete and in compliance with CEQA. The City also adopted a motion of intent to select the east alternative to the proposed center expansion (including the office tower). The east alternative necessitated the removal or destruction of the Merrium Apartments, a priority structure on Sacramento‘s official register of historic properties. The City held a hearing on the feasibility of retaining the Merrium Apartments. The City determined that, in order to achieve the contiguous square footage required for the needed expansion of the center‘s exhibit hall, the Merrium could not remain in its present location. The City adopted a requirement of replacement housing as a condition of approval of the expansion of the center.
On October 25, 1988, by a five-to-four vote, the City certified the EIR and formally approved the east alternative. The City also adopted findings of fact and a statement of overriding considerations.
In its findings the City found that, should the relocation of the Merrium prove to be infeasible, the adverse impact of the loss of the Merrium was overridden by the benefits of the expansion of the project. In addition, the findings required the City to explore the possibility of relocating the Merrium. However, a feasibility study commissioned by the City concluded moving the Merrium was not feasible because of the weight, width and depth of the structure. Subsequently, the City issued a finding stating moving the Merrium was not feasible, and reaffirming its statement of overriding considerations for the loss of the Merrium.
Plaintiffs filed a notice of appeal, following the entry of judgment.4
I. Compliance With CEQA
Plaintiffs’ appeal attacks the validity and sufficiency of the EIR with respect to its treatment of mitigation of impacts and analysis of cumulative impacts. The impacts plaintiffs focus on are the problems associated with parking and traffic.
A. Standard of Review
When plaintiffs challenge CEQA decisions, reviewing courts generally will defer to the agency‘s substantive judgments while requiring strict compliance with procedures required by law. Courts must not overturn an agency‘s discrеtionary decisions and substitute their own opinions as to what constitutes wise public policy. (El Dorado Union High School Dist. v. City of Placerville (1983) 144 Cal.App.3d 123, 130.) “The court does not pass upon the correctness of the EIR‘s environmental conclusions, but only upon its sufficiency as an informative document.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.)
In applying the substantial evidence standard, the reviewing court must resolve reasonable doubt in favor of the administrative finding and decision. Substantial evidence consists of enough relevant information and reasonable inferences from this information that a fair argument can be made to support the agency‘s conclusion, even though other conclusions might also be reached. (Laurel Heights, supra, 47 Cal.3d at pp. 392-393.)
B. Mitigation of Parking and Traffic Impacts
Plaintiffs argue the City‘s EIR is defective because it fails to properly analyze or adequately mitigate the potential environmental effects of the parking necessitated by the project.
1. Impacts Discussed in the EIR
Before we address the specifics of plaintiffs’ contention, we review the parking impacts discussed in the EIR. In preparation for the EIR, the City analyzed the number of vehicle trips and parking impacts the various center expansion alternatives would generate. For each alternative, the City used a hypothetical “worst case” scenario based on the assumption that all expanded convention center facilities were programmed to be utilized on the
The EIR found that, under the worst case scenario, every available parking space, both public and private within a three-block radius would be occupied. In addition, even with full occupancy of available spaces, an additional 1,760 parking spaces would be needed. Further, the project would eliminate 200 existing parking spaces, bringing the spaces required to a total of 1,960.
When the impacts of the 1215 K Street office tower (227 parking spaces needed) and the 1325 J Street office tower (434 parking spaces needed) were added, the total rose to 2,621 needed spaces.
In summary, under the worst case scenario, the vehicles generated by the full use of the expanded convention center and two office towers would fill all the available parking spaces within three blocks, and parking spaces would still be needed for 2,621 cars.
In the draft EIR, which considered the various expansion proposals, the City summarized in detail the parking impacts under each proposal. In addition, the City prepared tables outlining: the number of trips expansion of the convention center and construction of the office towers would generate; a comparison of the number of trips generated by the existing center and by an expanded center; and a graph summarizing parking impacts.
2. Mitigation Measures in the EIR
The City‘s draft EIR discussed ways of mitigating the impact of parking. The draft EIR outlined mitigation measures for each of the proposals, as well as mitigation measures for the cumulative effects of the office towers and center.
Because the proposed traffic and parking mitigation measures for the subsequently adopted east alternative are the primary focus of plaintiffs’ appeal, we reproduce them in full:
“Mitigation Measures [] The following measure is required by the City to offset potential traffic impacts:
“The City will require preparation of a Transportation Management Plan (TMP) to reduce project-related traffic and parking impacts.
“The following additional measures are recommended by the Consultant and should be considered as part of an overall program to reduce area parking utilization to less than 90 percent occupancy:
“Parking. Mitigation measures to reduce projected parking impacts have been developed with the overall goal being an overall area parking utilization rate of 90 percent during the critical weekday afternoon period. Potential mitigations include satellite parking facilities, and program controls to reduce parking demands. Specific potential mitigations are described as follows:
“a. Limit the Size of ‘Short-Term’ Weekday Events. A significant amount of the projected parking impact is the result of assumed attendance at secondary ‘short-term’ events, such as state exams or seminars. The worst-case analysis assumes 1,735 persons attend such an event. Restricting the size of these secondary events when a public show or convention is being held would reduce parking impacts.
“b. Promote Regional/National Conventions. This analysis has assumed that a locally-oriented convention, such as has occurred in the past, would occur. Such conventions or conferences which draw from the local area population also feature high private automobile usage. Regional/national conventions, with greater emphasis on airplane travel and downtown hotel accommodations, would create less impact, and promoting and booking such events would reduce parking demands. To promote regional/national conventions, additional downtown hotel space would probably have to be provided.
“c. Provide Satellite Parking. Area parking impacts could be reduced if event attendees parked elsewhere and walked or were shuttled to the Convention Center. Satellite parking locations would have to be readily identifiable to patrons and shuttle service would have to be timely and convenient. Implementation of this mitigation is complicated by the need to locate a source of available parking during the critical weekday afternoon hours. This parking would have to be located outside the study area and would have to be designated for Convention Center attendees. Use of light rail parking areas for satellite parking might be considered if sufficient parking capacity could be provided and enought [sic] light rail seats are available.
“d. Promote Alternative Transportation Modes for Attendees. The use of existing RT Metro and Bus service by event attendees should be promoted through advertising, passes or subsidies.
“e. Restrict Event Schedules. Large locally-oriented conventions or conferences could be restricted to evenings and weekends when the area parking supply may more adequately meet projected demands. Such inc[e]ntives are already provided for many public downtown events (i.e., jazz festival) where parking is at a premium.
“f. Promote Alternative Transportation Modes for Existing Area Employees and Visitors. Additional parking could be made available if downtown employees or visitors, now driving private automobiles, were encouraged to carpool or to use transit service. Designating existing parking for pools, increasing parking rates or subsidizing transit utilization are potential measures to reduce current parking demands.
“g. Construct Additional Parking. Impacts to area parking conditions could be partially mitigated by redesigning the project to provide on-site parking or by constructing additional parking in the study area which would be designated for Convention Center attendees. The Downtown Sacramento Parking Study (Wilbur Smith Associates 1/88) notes a proposal to expand Lot E (12th & I) to provide 381 spaces, and describes the East End Garage (1,058 spaces on I Street between 10th and 11th). Both projects would be available to the general public but could be designated for Convention Center use in order to accommodate large concurrent events. The study also describes development of a Lot C structure, which could provide a net increase of 733 spaces on H Street between 14th and 15th Street. In addition, the recently completed Hyatt Regency Ho[t]el is intended to provide some public parking. This additional parking was not included in the demand analysis. To mitigate project parking demands, the overall level of parking utilization in the study area should not exceed 90 percent. Table 4-25 provides a schedule for calculation of variable mitigations which would achieve this level of utilization. Use of this schedule is described in detail under cumulative conditions, and an example application is presented in Appendix C.”
After circulation of the draft EIR, during a series of public meetings, the City was bombarded by questions concerning, among other issues, the impact of parking in downtown Sacramento. SOCA questioned some of the parking mitigation alternatives. The Department of Public Works аnd the Department of Transportation commented on parking mitigation measures. In response, the City outlined, discussed and attempted to clarify the various mitigation measures. In addition, written comments concerning parking were solicited, discussed and ultimately included in the EIR.
On appeal, plaintiffs argue the EIR‘s consideration of parking impacts fails to comply with the requirements of CEQA. Plaintiffs phrase this
3. Improper Segmentation of the EIR
Initially, plaintiffs argue the lack of specificity in the parking mitigation measures discussed in the EIR amounts to an illegal segmentation of the project. According to plaintiffs’ reasoning, by deferring the complete review of parking problems until an undetermined future date, the City has illegally truncated the proposed project and treated parking impacts as a separate independent project.
As plaintiffs point out, the heart of the EIR process is an accurate description in the EIR of the proposed project. “A curtailed or distorted project description may stultify the objectives of the reporting process. Only through an accurate view of the project may affected outsiders and public dеcision-makers balance the proposal‘s benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal . . . and weigh other alternatives in the balance. An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (Inyo County v. City of Los Angeles, supra, 71 Cal.App.3d at pp. 192-193.)
Plaintiffs argue specific, detailed provisions for necessary parking fall within the project‘s scope, and must be included in the EIR. In support, plaintiffs cite Laurel Heights, supra, 47 Cal.3d at page 376. In order to address plaintiffs’ concerns a detailed discussion of Laurel Heights is necessary. In Laurel Heights a citizens association challenged the University of California‘s (University) certification of an EIR for the expansion of the pharmacy school‘s biomedical research operations, and the creation of a new facility in a residential neighborhood.
One of the plaintiff‘s contentions centered on the scope of the University‘s EIR. Plaintiff argued the EIR did not accurately assess the project‘s reasonably foreseeable impacts, because the analysis ignored the fact the University intended to expand the research facility within a few years after opening it. (47 Cal.3d at pp. 393-394.)6 The EIR omitted any discussion of
The Supreme Court agreed with plaintiff and held that the EIR should have addressed anticipated future uses of the site and their environmental effects. The court also found that “a public agency‘s approval of a project or future portions of a project is not a prerequisite for an environmental impact report under CEQA.” (47 Cal.3d at p. 395, fn. omitted.)
The court went on to explain: “The more important and difficult question is what circumstances require consideration in an EIR of future action related to the proposed project. A basic tenet of CEQA is that an environmental analysis should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment. The [University] Regents correctly note that where future development is unspecified and uncertain, no purpose can be served by requiring an EIR to engage in sheer speculation as to future environmental consequences. We agree that environmental resources and the public fisc may be ill served if the environmental review is too early. On the other hand, the later the environmental review process begins, the more bureaucratic and financial momentum there is behind a proposed project, thus providing a strong incentive to ignore environmental concerns that could be dealt with more easily at an early stage of the project. This problem may be exacerbated where, as here, the public agency prepares and approves the EIR for its own project. For that reason, EIRs should be prepared as early in the planning process as possible to enable environmental considerations to influence project, program or design.” (47 Cal.3d at p. 395, citations omitted, internal quotation marks omitted.)
The court then considered how to balance these competing concerns stating: “We hold that an EIR must include any analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project. Of course, if the future action is not considered at that time, it will have to be discussed in a subsequent EIR before the future action can be approved under CEQA. [[] This standard is consistent with the principle that ‘environmental considerations do not become submerged by chopping a large project into many little ones—each with a minimal
Plaintiffs in the present case contend the facts before us concerning parking compel the same conclusion. According to plaintiffs, provision of necessary parking for the expansion of the center was reasonably foreseeable and provision for adequate parking “by any method would be a major undertaking that would of necessity greatly expand the scope and nature of the initial project‘s environmental consequences beyond the effects of the building of the expansion and office towers alone.”
We must disagree with plaintiffs’ analysis of the facts of this case. We agree the necessity for adequate parking is reasonably foreseeable given the worst case scenario of 2,621 automobiles searching for parking in downtown Sacramento. In response to this foreseeable impact, the City provided a list of seven “specific potential mitigation” measures ranging from limiting the size of weekday events to constructing additional parking.
However, unlike the situation in Laurel Heights where the University knew it would be expanding in the immediate future, and knew exactly how many square feet the expansion would be, the City in this case knows only that it will have to mitigate parking, probably by implementing some or all of the potential mitigation measures listed in the EIR. These potential mitigation measures may, in certain combinations greatly expand the scope and nature of the project‘s environmental consequences. However, until these specific measures are adopted and more fully fleshed out, their effects remain abstract and speculative.
This was not the case in Laurel Heights where the record revealed the University had already decided on expanding the project to twice its original size.7 Nothing in the record before us shows the City had already
4. Adequacy of Mitigation Measures
Plaintiffs argue the EIR is defective because the City failed to describe and examine “true” mitigation measures and failed to analyze the potential environmental impacts of implementing such measures. Plaintiffs contend the EIR provides no specific mitigation measures for the parking impacts, but instead offers a list of “seven general measures of the sort that might be included in [the City‘s] unformulated ‘Transportation Management Plan.‘” This, according to plaintiffs, is not enough to satisfy CEQA.
The CEQA guidelines state that to be legally adequate mitigation measures must be capable of: “(a) Avoiding the impact altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment. (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.” (
For each significant effect, the EIR must identify specific mitigation measures; where several potential mitigation measures are available, each should be discussed separately, and the reasons for choosing one over the others should be stated. If the inclusion of a mitigation measure would itself create new significant effects, these too, must be discussed, though in less detail than required for those caused by the project itself. (Guidelines,
For projects for which an EIR has been prepared, where substantial evidence supports the approving agency‘s conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy. (Laurel Heights, supra, 47 Cal.3d at p. 407.)
Plaintiffs compare the situation in the present case to the situation in Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296. In Sundstrom, the appellate court set aside a county‘s approval of a conditional use permit authorizing construction of a sewage treatment plant to serve an existing development. The court found the county had violated CEQA by approving the project based on a negative declaration without first resolving uncertainties regarding the project‘s potential to cause significant environmental impacts. (Id. at pp. 307-308.)
Although plaintiffs contend the lack of specific parking mitigation in the present case mirrors the situation in Sundstrom and compels a similar result, we note several distinct differences between the two cases. First, Sundstrom involved a negative declaration. A negative declaration must be prepared when an agency determines, after preparing an initial study, that a project “does not have a significant effect on the environment.” Such a determination can be made only if “[t]here is no substantial evidence before the agency” that such impacts may occur. (
Moreover, the county in Sundstrom approved the project without considering or addressing any mitigation measures. In the present case, the City has set forth a list of alternatives to be considered in the formulation of a transportation management plan, a plan the City itself, not the develоper, will prepare.
As one commentator has opined, Sundstrom “need not be understood to prevent project approval in situations in which the formulation of precise means of mitigating impacts is truly infeasible or impractical at the time of project approval. In such cases, the approving agency should commit itself to eventually working out such measures as can be feasibly devised, but should treat the impacts in question as being significant at the time of project approval. Alternatively, for kinds of impacts for which mitigation is
The City in the present case has, in fact, committed itself to mitigating thе impacts of parking and traffic. The City approved funds for a major study of downtown transportation.
The draft EIR discussed several options for mitigating the parking problem. The EIR section on mitigation noted: “Impacts to area parking conditions could be partially mitigated by redesigning the project to provide on-site parking or by constructing additional parking in the study area which would be designated for Convention Center attendees. The Downtown Sacramento Parking Study (Wilbur Smith Associates 1/88) notes a proposal to expand Lot E (12th & I) to provide 381 spaces, and describes the East End Garage (1,058 spaces on I Street between 10th and 11th). Both projects would be available to the general public but could be designated for Convention Center use in order to accommodate large concurrent events. The study also describes development of a Lot C structure, which could provide a net increase of 733 spaces on H Street between 14th and 15th Street. In addition, the recently completed Hyatt Regency Ho[t]el is intended to provide some public parking. This additional parking was not included in the demand analysis.”
The City, in its brief, points out how in Laurel Heights the Supreme Court held a list of parking mitigation options sufficient to satisfy the requirements of CEQA. In Laurel Heights the University‘s EIR found that relocation of the research facilities would not appreciably increase traffic. The court went on to note: “The discussion [in the EIR] of parking also fails to show any significant defects. UCSF [the University] estimated that without mitigation measures 507 on-site parking spaces will be available.
While we agree with plaintiffs’ observation that the 29 parking space deficit in Laurel Heights is far less egregious than the deficit of 2,621 parking spaces in the present case, we also find the alternatives proposed as a means of mitigating this deficit are far more extensive than those found sufficient in Laurel Heights. In the present case, the EIR offered seven distinct types of alternatives to be studied, analyzed and possibly incorporated into a transportation management program. The range of alternatives includes scheduling changes for the expanded center‘s activities, satellite parking locations; public transit, carpooling; and construction of new parking or expanded use of existing parking. Given the facts of the case before us, we find the trial court did not err in finding these proposed mitigation measures satisifed CEQA.
5. Cumulative Effects of Mitigation Measures
Plaintiffs argue the convention center expansion will generate significant mitigation measures, which will, in turn, create new and significant environmental effects. Plaintiffs contend the EIR fails to adequately discuss these mitigation impacts, and therefore the EIR violates CEQA.
A draft EIR must discuss cumulative impacts when they are significant. (Guidelines,
According to plaintiffs, “it is clear that significant measures will have to be taken in order to accommodate the over-2,600-space parking deficit that the project would generate in the heart of downtown Sacramento. Because any such measures—whether the construction of new downtown parking lots, the erection of a large parking garage or the shuttling of hundreds of people from unspecified outlying parking areas—are likely to create substantial additional adverse environmental effects” these cumulative effects must by analyzed in the EIR.
In effect, plaintiffs contend the EIR must include a discussion of the cumulative effects of projects which have not yet been approved. This
In a similar case, Towards Responsibility in Planning (TRIP) v. City Council (1988) 200 Cal.App.3d 671 [246 Cal.Rptr. 317], TRIP, a citizen‘s group, challenged an EIR contending the industrial development of an agricultural area would precipitate the need for a sewage treatment plant. TRIP argued the EIR did not adequately discuss the environmental costs and benefits of the treatment plant and contended the City had to wait until the five-year study on the plant was completed before thе EIR could be adopted. (Id. at p. 676.)
The court disagreed, finding, “Adoption of an EIR need not be interminably delayed to include results of works in progress which might shed some additional light on the subject. The sufficiency of an EIR as an informative document is judged ‘in light of what is reasonably feasible.’ [] We are satisfied that the EIR was sufficiently detailed in its discussion of the effect of the proposed projects on water quality. It is unnecessary in an EIR to engage in sheer speculation as to future environmental consequences. It would be unreasonable to expect this EIR to produce detailed information about the environmental impacts of a future regional facility whose scope is uncertain and which will in any case be subject to its own environmental review.” (200 Cal.App.3d at p. 681, citations omitted.)
In No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223 [242 Cal.Rptr. 37], the appellate court considered plaintiffs’ challenge of an EIR on the drilling of exploratory wells and development of transport pipelines. Plaintiffs argued the EIR‘s discussion of pipeline routes was inadequate. The court found the EIR to be adequate, holding that the lack of detail on proposed pipeline routes did not violate CEQA. The EIR identified the planned pipeline‘s ultimate destinations, but did not explore either all the
In the present case, we find unreasonable plaintiffs’ contention that the EIR is unsatisfactory because of its failure to consider the possible cumulative impacts stemming from the seven proposed mitigation measures. As the Guidelines point out, “Drafting an EIR . . . involves some degree of forecasting. While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all it reasonably can.” (
C. EIR‘s Analysis of Cumulative Impacts
Plaintiffs contend the City has failed to adequately address the cumulative parking and traffic impacts.14 In particular plaintiffs focus on the
In support of this assertion, plaintiffs cite a written comment by California Department of Transportation (CALTRANS) which stated, in part: “Caltrans is concerned that this draft EIR, as with other documents prepared for the downtown area, does not address impacts to state facilities. We are particularly concerned about impacts to ramps on Business 80 and Interstate 5 during peak hours . . . . We request the final EIR address the above concerns.” In addition, the plaintiffs point out the State Department of General Services also requested that the City analyze the impact of center expansion on freeway interchanges. Despite these comments, plaintiffs argue, the City refused to do any additional analysis.
The City included these written comments in the EIR. The EIR also includes an analysis of the cumulative traffic impacts caused by expanding the existing center. This analysis considers the increase in traffic in downtown Sacramento as well as on nearby freeway interchanges. The study concludes the additional traffic would not cause the “level of service” at the intersections and onramps to fall below “Level C.” As the EIR states, in part: “City of Sacramento utilizes Level-of-Service ‘C’ as an operational level beyond which mitigations are required to improve intersection performance. . . . Projected intersection performance would vary at each location depending upon the development alternative . . . . This is especially true at intersections immediately adjacent to proposed individual access locations. However, traffic volumes generated from the operation of an expanded Convention Center would allow satisfactory intersection operation at all locations. AM and PM peak hour Levels-of-Service are projected to be satisfactory for the East Alternative and all other Convention Center alternatives when projected Convention Center volumes are added to existing traffic conditions.”
Given the record before us, we find the City adequately discussed the cumulative traffic impact of the project on surrounding roads and intersections. The EIR takes into consideration the severity of the traffic impacts, and the likelihood of their occurrence. As the Guidelines instruct, “the discussion [of cumulative impacts] should be guided by the standards of practicality and reasonableness.” (
Plaintiffs challenge the sufficiency of the evidence in support of two of the City‘s findings: (1) traffic and parking impacts will be mitigated to a level of insignificance; and (2) loss of the Merrium Apartments will be mitigated.
An agency cannot fulfill its CEQA duties simply by considering the EIR before approving the project. (Burger v. County of Mendocino (1975) 45 Cal.App.3d 322, 326 [119 Cal.Rptr. 568].) If the agency decides to approve a project despite its significant adverse impacts, the agency must issue findings which specifically state how the agency has responded to the significant impacts identified in the EIR. “[T]he purpose of the statutory requirement for findings is to ensure that the decisionmaking agency actually considers mitigation measures.” (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 896 [236 Cal.Rptr. 794].)
For each significant effect identified in the EIR, the agency must make one or more of the following findings: (1) that changes or alterations have been required in, or incorporated into, the project that avoid or substantially lessen the effect; (2) that the lead agency lacks jurisdiction to make the change, but that another agency does have such authority; and/or (3) that specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the Final EIR. (
In Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 [113 Cal.Rptr. 836, 522 P.2d 12], the Supreme Court explained the reason for requiring detailed findings: “Among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. In addition, findings enable the reviewing court to trace and examine the agency‘s mode of analysis. [] Absent such roadsigns, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency.” (Id. at pp. 516-517, citations omitted.)
After approving the project, the City approved mitigation measures for parking and traffic. The City also issued the following finding:
“The City Council finds, based on substantial evidence in the record, that the following mitigation measures will reduce the above described potentially significant effects on traffic, circulation and parking, below a level of significance.
“1) The City will require preparation of a Transportation Management Plan (TMP) to reduce project related traffic and parking impacts and
“2) The City will set a goal of achieving 90 percent utilization of the available parking supply during the critical weekday afternoon period. Of the potential measures discussed in the EIR for achieving the 90 percent parking utilization rate, the Council finds that the following measures are feasible:
“-promote regional/national conventions;
“-provide satellite parking;
“-promote alternative transportation mode for attendees;
“-promote alternative transportation modes for existing area employees and visitors; and
“-construct additional parking.”15
In their attack on the findings, plaintiffs reiterate their objections to sufficiency of the mitigation measures proposed by the City and argue the finding concerning parking mitigation completely lacks evidentiary support. In particular, plaintiffs argue there is no description of either the transportation management plan or the satellite lots.16
These subsequent measures, taken by the City, and reflected in the administrative record, provide substantial evidence in support of the finding that “[t]he City will require preparation of a Transportation Management Plan . . . to reduce project related traffic and parking impacts.”
As for satellite parking, the City discussed a shuttle service as an alternative means of bringing patrons to the expanded center. The City considered use of existing light rail parking areas for satellite parking, noting such use was contingent on the availability of light rail seats and spaces in light rail lots. The City estimates use of satellite lots would reduce demand by 350 parking spaces.
The EIR also suggested parking and traffic impacts could be lessened through the use of advertising, passes or subsidies aimed at encouraging potential patrons to carpool or use transit services. Specifically, the EIR considered “[d]esignating existing parking for [car] pools, increasing parking rates or subsidizing transit utilization.” The development scenario for the eastern expansion of the center advises promoting rapid transit use by office tenants and increasing rapid transit capacity to achieve a goal of 30 percent transit utilization by office tenants. The scenario indicates such usage would result in a reduction in parking demand by 720 spaces.
We find the EIR, in its consideration, discussion and analysis of the various proposed mitigation measures has complied with CEQA‘s findings requirement. Substantial evidence in the record supports the City‘s finding
We distinguish the findings in the present case from those we found insufficient in Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433 [243 Cal.Rptr. 727]. Citizens for Quality Growth involved a general plan amendment and rezone allowing the industrial and commercial use of sensitive wetlands. The city failed to issue findings regarding both mitigation measures and project alternatives. The city attempted to justify its failure to make findings on the feasibility of 21 mitigation measures set forth in the EIR by arguing that adoption of such measures would be premature until the developer had submitted a specific development plan. (Id. at p. 442.) We disagreed noting, “While detailed mitigation measures may not be possible before a specific development plan is proposed, general mitigation measures may be adopted and are in fact suggested in the EIR.” (Id. at p. 442.) In the present case, the City set forth general mitigation measures regarding traffic and parking, and adopted findings regarding these mitigation measures.17
2. Findings Regarding the Merrium Apartments
Plaintiffs also contend the EIR‘s findings with respect to mitigation for demolition of the Merrium Apartments are legally deficient. Plaintiffs characterize the EIR‘s mitigation measures as “vague and conclusory” promises to remedy the impact of the loss of housing in the future.
In its findings, under the heading “Historic Preservation and Cultural Resources” the EIR states, in part: “The City Council has determined the project site selected (East Alternative) could cause the following potentially significant effects on historic preservation and cultural resources: [] (1) Demolition of the Merrium Apartments (a priority structure) if relocation is found to be infeasible.” The City further stated as a mitigation measure, “The City will make every reasonable effort to relocate the Merrium Apartment Building to another site.” The EIR went on to state: “The City Council further finds that if relocation of the Merrium Apartment building is not feasible, relocation housing will be caused to be constructed. No other
Under the heading “Housing,” the EIR again acknowledged the impact of demolition of the Merrium Apartments and set forth as a mitigation measure the following: “The City will establish an aggressive program to locate appropriate replacement housing in the Central City for tenants displaced from the Merrium Apartments. The City will also cause replacement housing to be built, if the relocation of the Merrium Apartment building is found to be infeasible.”
The City points out it commissioned two studies on the Merrium. The first, a study of historical structures in downtown Sacramento, was summarized in the EIR, and integrated into the cumulative impact analysis for historic structures included in the EIR.19 The EIR also utilized this study in its discussion of comparative impacts each of the four alternative expansion prоposals would have on historic structures.
The City commissioned a second study in accordance with the EIR‘s recommendation that the City thoroughly investigate the technical and economic feasibility of relocating the Merrium. This study, entitled the “Turner Study,” concluded relocation would cost approximately $3.7 million. The study found, “Unfortunately, the combination of building to
The City also took further steps to mitigate the loss of the Merrium‘s 41 apartment units. The EIR recommended the following mitigation measures to alleviate the impact on downtown Sacramento housing: (1) establish an aggressive program to locate appropriate replacement housing for the Merrium‘s displaced tenants; (2) provide monetary relocation benefits for displaced tenants ($500 for fixed moving costs, with possible reimbursement for reasonable higher moving costs and compensation for rent differential up to $4,000 or 25 percent of the individual‘s income).
To address the first mitigation measure, the City adopted a requirement of replacement housing in downtown Sacramento as a cоndition for approval of the center expansion. Subsequently, the City approved a replacement housing project, located two blocks from the Merrium. This project adds 51 units to the area. At the same time, the City moved to contract with the Sacramento Housing and Redevelopment Agency to provide a budget of $400,000 for relocation assistance for Merrium tenants. The City also passed a resolution to purchase the Merrium for $1.3 million.
Our review of the record before us reveals the mitigation measures and the findings concerning the loss of the Merrium are both adequate under the requirements of CEQA and are supported by substantial evidence in the record. As our Supreme Court recently summarized “The wisdom of approving this or any development project, a delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions. The law as we interpret and apply it simply requires that those decisions be informed, and therefore balanced. Concurrently, we caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.” (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 576.)
DISPOSITION
The judgment is affirmed. Defendants to recover costs on appeal.
Puglia, P. J., concurred.
There is no substantial evidence showing that parking needs, which will be inexorably generated by the massive convention center project, can be mitigated without construction of additional pаrking facilities. Therefore, construction of additional parking facilities is a direct, inevitable effect of the project, a conclusion which (given the size and location of the project) should come as no surprise to anyone. Yet no environmental consideration was given to the inevitable effects of constructing additional parking facilities.
The environmental impact report (EIR) did not pretend there were no parking problems. Rather, the EIR acknowledged serious parking problems and proposed a “menu” of mitigation measures to meet the demand for 2,621 spaces. The question is whether there was substantial evidence, as required by California Environmental Quality Act (CEQA), supporting the city council‘s conclusion that the documented adverse environmental impacts of parking had been mitigated to a point of insubstantiality. The only mitigation measures that are relevant are those expressly found and adopted by the city council (City Council):
- Promote regional/national conventions;
- Provide satellite parking;
- Promote alternative transportation modes for attendees;
- Promote alternative transportation modes for existing area employees and visitors;
- Construct additional parking.
Even assuming the parking reduction measures adopted by the City Council are supported by substantial evidence showing a reduction of parking problems to insignificance, the possible adverse effects of some of the mitigation measures (construction/expansion of additional parking, satellite parking, and promotion of national/regional conventions) should have been considered in the EIR. (
The City‘s argument is not valid. Based on the evidence before the City Council, it was clear that the fifth option (construct additional parking) would have to be chosen, because the other four mitigation measures combined are insufficient to meet the parking demand. Thus, disregarding the option of constructing new parking, the City‘s projections show that only 1,070 spaces can be provided by two of the remaining four mitigation measures: promotion of alternative transportation for office workers (720 spaces) and the provision of satellite parking (350 spaces). Apart from the problem that these figures are unsupported by any evidence, the City is still left with an unmet demand of more than 1,500 parking spaces. There do not appear to be any specific figures in the EIR for the projected success of the other two mitigation measures: promoting alternative transportation for convention center attendees and promoting regional/national conventions.3 Therefore, construction of additional spaces is not merely an option but is a reasonably foreseeable and significant action that should have been addressed in the EIR in accоrdance with the Guidelines and the requirement that the EIR “must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396 [253 Cal.Rptr. 426, 764 P.2d 278].)
As to construction of new parking spaces, the EIR describes a downtown Sacramento parking study (Wilbur Smith Associates, Jan. 1988), which involves proposals to expand and develop three specific parking structures that would provide a total of 2,172 spaces.4 However, there is no discussion of the environmental effects of these proposals. Moreover, it does not appear that that study was prepared in connection with the convention center expansion, because the EIR states that at least two of those projects would be available to the general public but “could be designated for Convention Center use.”
On the record before us, the City‘s conclusion in the EIR that the spaces identified in the Downtown Sacramento Parking Study “could be designated for convention center use” is nothing more than “[m]ere uncorroborated opinion,” which does not constitute substantial evidence. (
The majority correctly conclude the trial court erroneously considered a subsequent outline of a draft EIR that was not before the City at the time the convention center expansion was approved. A court‘s task is to determine “whether substantial evidence supports the аgency‘s determination. [Citations.]” (Laurel Heights, supra, 47 Cal.3d at p. 392, fn. 5, italics added.) Because the draft outline of a supplemental EIR has never been presented to the City Council, it cannot constitute evidence supporting the council‘s determination.5 The document is simply a preliminary draft document, never circulated for public comment nor certified, which was lodged in the administrative record in an attempt to shore up what the City Council already did.6
The record fails to contain any substantial evidence showing that the convention center expansion can be accomplished without construction of additional parking facilities. Yet, the City has failed to consider the environmental effects of the inevitable construction of parking spaces that will be required by the convention center expansion. This case sets a dangerous precedent because it allows proponents of major projects to defer a consideration of the environmental effects of constructing inevitably necessary parking structures. Once the project is approved, it can then be presented as a fait accompli in connection with the later environmental review of parking structures. “[T]he later the environmental review process begins, the more bureaucratic and financial momentum there is behind a proposed project, thus providing a strong incentive to ignore environmental concerns that could be dealt with more easily at an early stage of the project.” (Laurel Heights, supra, 47 Cal.3d at p. 395.) Here, proponents of parking structures will be able to say, “Well, we‘ve got the convention center, so what do we do with all the cars if we don‘t build the structures?” In my view, this is not what CEQA has in mind when it requires environmental review of all reasonably foreseeable consequences of a project. (Id. at p. 396.)
On the record before us, the judgment should be reversed.
A petition for a rehearing was denied May 28, 1991, and appellants’ petition for review by the Supreme Court was denied August 22, 1991.
Notes
The only specific information that the document adds to the EIR is that 600 spaces will be built underneath the convention center expansion site.
The trial court considered this postdecision material in the administrative record over plaintiffs’ objection. However, under
“retaining the existing structure;
“retaining the facade only;
“relocating the building to another site; or
“relocating the facade to another site.
“Retention of the existing structure would not significantly reduce the Convention Center space since the apartment building sits on a relatively small parcel (80‘x 80‘). Of the various historical buildings on the alternative sites, the Merrium apartment building is by far the tallest and most intensively used. For this reason, it is the structure least likely to be dwarfed by new construction. Retention of the building is impractical from a space programming standpoint, however, since the Expansion needs large expanses of contiguous space. Additionally, vehicular access to the Merrium would be restricted by the Expansion and the building would be isolated from adjoining buildings.
“Retention of the facade would be impractical unless the proposed Expansion were to be at least five stories tall. As current plans call for a much shorter structure, this measure is infeasible. Relocation of the building‘s facade would be nearly impossible from a technical standpoint and impractical in terms of finding another structure to which it might be attached.
“Relocation of the five-story reinforced concrete building to another site may be technically infeasible. However, the City should thoroughly investigate the technical and economic feasibility of relocating the Merrium Apartments to a suitable site in the downtown area.”