E. Sacramento P'ship for a Livable City v. City of Sacramento

• Decision Date: 07 November 2016
• Docket Number: C079614
• Court: California Court of Appeals Court of Appeals
• Parties: EAST SACRAMENTO PARTNERSHIP FOR A LIVABLE CITY, Plaintiff and Appellant, v. CITY OF SACRAMENTO et al., Defendants and Respondents; Encore McKinley Village, LLC, Real Party in Interest and Respondent.

5 Cal.App.5th 281

209 Cal.Rptr.3d 774

EAST SACRAMENTO PARTNERSHIP FOR A LIVABLE CITY, Plaintiff and Appellant,

v. CITY OF SACRAMENTO et al., Defendants and Respondents;Encore McKinley Village, LLC, Real Party in Interest and Respondent.

C079614

Court of Appeal, Third District, California.

Filed November 7, 2016

As Modified on Denial of Rehearing December 6, 2016

Larson Willis & Woodard, Geoffrey Keith Willis ; Brown Rudnick and Stephen Robert Cook, Irvine, for Plaintiff and Appellant.

James Sanchez, City Attorney, Brett M. Witter, Supervising Deputy City Attorney, and Jeffrey C. Heeren, Deputy City Attorney for Defendants and Respondents.

Thomas Law Group, Tina A. Thomas, Ashle T. Crocker, Amy R. Huguera, and Meghan M. Dunnagan for Real Party in Interest and Respondent.

Duarte, J.Real Party in Interest Encore McKinley Village, LLC (Encore) proposed to construct the McKinley Village Project (the Project), a 328–unit residential development on a 48.75–acre site located in East Sacramento and bounded on the south and east by Union Pacific Railroad tracks and on the north and west by the Capital City Freeway. The City of Sacramento certified the Project's environmental impact report (EIR) and approved the Project.

East Sacramento Partnership for a Livable City (ESPLC), a neighborhood group, appeals from denial of its petition for a writ of mandate and complaint for declaratory and injunctive relief to set aside the City's approval of the Project. ESPLC contends the City violated the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 2100 et seq.)¹ when it approved the Project because (1) the Project description is defective; (2) there was illegal piecemealing; (3) the EIR failed to analyze significant health risks; (4) the EIR ignored significant traffic impacts; and (5) the EIR failed to disclose or mitigate methane migration. Further, ESPLC contends the Project is inconsistent with the City's general plan.

We find merit in only the fourth contention. ESPLC challenges the threshold of significance used in the EIR to determine whether traffic impacts are significant. The City relied on policies in its general plan that permit congested traffic conditions within the core area of the City, thus finding no significant impact of congested traffic on neighborhood streets. As we explain in Part I E 2, compliance with a general plan policy does not conclusively establish there is no significant environmental impact, and the City failed to explain why it found none in this circumstance. We reverse the judgment and remand for the City to correct this deficiency in the EIR.

BACKGROUND

The Project

The Project, as finally approved, is a 336–unit residential development with a community recreation center and three parks on a 48.75–acre site. The Project is residential infill, designed to be consistent with the quality and character of the adjoining East Sacramento and McKinley Park neighborhoods. The Project site is roughly football-shaped and sandwiched between Interstate 80 Business Route (Capital City Freeway) to the north and the Union Pacific Railroad tracks to the south. The site meets the City's definition of land targeted for infill development.

To the north of the Project, across the freeway, is the former 28th Street Landfill, now designated Sutter's Landing Regional Park. To the southwest is a residential neighborhood in midtown Sacramento. To the south, across the railroad tracks, is the Cannery Business Park on C Street. Across C Street is a residential neighborhood in East Sacramento.

There will be two points of access to the Project. The first is the upgrade of the existing A Street Bridge, which will connect the Project to 28th Street in midtown. The second is a new underpass under the Union Pacific railroad embankment to C Street, between 40th Street and Tivoli Way. Both access points will accommodate vehicular, bicycle, and pedestrian traffic.

The EIR

The EIR studied and analyzed the Project's impacts compared to two baselines, the existing conditions (existing plus project) and future or cumulative conditions (cumulative plus project). The cumulative conditions were based on a build-out of the City's 2030 general plan. The EIR found no project specific or cumulative impacts that could not be avoided; all impacts could be mitigated to a less than significant level.

In response to concerns about the health risks to residents of the Project, a health risk analysis accompanied the EIR. This study determined the potential cancer risk to future residents due to diesel particulate matter emissions from diesel trucks and locomotives. The study concluded the cancer risk for the majority of residents was 80 in one million; at one residence, the risk was 120 in one million. These values were within accepted levels.

The primary issue was traffic. The EIR analyzed traffic impacts using the level of service (LOS) method, with a scale of A to F. LOS A is free flowing traffic and LOS F is congested, “stop and go” traffic. The EIR studied 32 intersection and 19 roadway segments. It found significant traffic impacts at some intersections under cumulative plus project conditions and included a number of traffic mitigation measures to reduce those impacts to less than significant.

City Approval and Subsequent Challenge

On April 29, 2014, by a vote of six to three, the City certified the EIR for the Project, adopted the findings of fact, adopted mitigation measures within the City's responsibility and jurisdiction, and adopted the Mitigation Monitoring Program.

The following month, ESPLC filed a petition for writ of mandate and complaint for declaratory and injunctive relief, challenging the City's decision to approve the Project. ESPLC contended there were numerous violations of CEQA, and approval of the Project violated the City's general plan. ESPLC sought a declaration that the Project approval was invalid and an injunction against any further action on the project.

The trial court denied the petition and ESPLC appealed.

DISCUSSION

I

Alleged CEQA Violations

A. Standard of Review

Section 21168.5 provides that a court's inquiry in an action to set aside an agency's decision under CEQA “shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” The CEQA Guidelines² define “substantial evidence” as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (CEQA Guidelines, § 15384, subd. (a).)

In applying this substantial evidence standard to an action to set aside an agency's decision under CEQA, we resolve reasonable doubts in favor of the agency's decision. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393, 253 Cal.Rptr. 426, 764 P.2d 278 (Laurel Heights ).) “A court 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. Our limited function is consistent with the principle that ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ [Citation.]” (Ibid . )

“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.] We therefore resolve the substantive CEQA issues ... by independently determining whether the administrative record demonstrates any legal error by the [City] and whether it contains substantial evidence to support the [City's] factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427, 53 Cal.Rptr.3d 821, 150 P.3d 709.)³

B. Adequacy of Project Description

“An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193, 139 Cal.Rptr. 396 (County of Inyo ).) However, the “CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project; indeed, new and unforeseen insights may emerge during investigation, evoking revision of the original proposal. [Citation.]” (Id . at p. 199, 139 Cal.Rptr. 396.) “Under section 21166, subdivision (a), once an agency has prepared an EIR, no subsequent EIR is required unless substantial changes are proposed in a project that will require major changes in the EIR.” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn . (1986) 42 Cal.3d 929, 935–936, 231 Cal.Rptr. 748, 727 P.2d 1029.)

The project description in the EIR must include “[a] list of permits and other approvals required to implement the project.” (CEQA Guidelines, § 15124, subd. (d)(1)(B).) ESPLC contends the project description omitted numerous City approvals, including a development agreement, a rezoning request to allow multi-family residences, an increase in the number of residential units from 328 to 336, and variances for driveway widths.

“Noncompliance with CEQA's information disclosure...