Sunnyvale West Baseline Issue Revisited? Not Exactly.

By Katherine J. Hart

Summary: In Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, the Court of Appeal, Sixth Appellate District, upheld the city’s certification of an EIR and approval of an expansion of the Palo Alto Medical Foundation’s medical campus finding that the city properly deemed the project consistent with its general plan; used the correct baseline for the traffic analysis in the EIR; used the correct baseline for the traffic noise analysis in the EIR; and contained a sufficient discussion of traffic noise impacts in the EIR.

Background Facts

This case involved the expansion of medical campus, including: the demolition of an existing 72,065 square foot building, three existing homes, and a surface parking lot; the construction of a 150,000 square foot three-story medical office building (52 feet high) with underground parking and 3,250 square feet of storage and waste management area; and the rezone the property from low-med density residential with office/planned development combining district to a public facilities/planned development combining district. The city elected to prepare an environmental impact report (EIR) for the project.

The notice of preparation for the EIR was issued on October 22, 2008, and a public scoping meeting was held on October 29, 2008. The draft EIR was circulated in January 2009 and the final EIR was published in May 2009, which included a reduced project description of a 120,000 square foot medical office building (38 feet high) with a two-story (not four-story) parking garage.

The city council certified the EIR and adopted the revised (reduced) project, but rejected the request for a rezoning. The neighbors (appellants) filed a petition for writ of mandate challenging the city’s approval of the project contending (1) the project was inconsistent with the city’s general plan, (2) the EIR failed to used the proper baseline with which to analyze traffic and traffic noise, and (3) the EIR improperly found construction noise was an unavoidable impact. The trial court denied the petition and the neighbors appealed.

General Plan Inconsistency 

Appellant neighbors argued that the project was inconsistent with the city’s general plan because the project entailed constructing a storage and waste management area on land zoned low density residential. The court reiterated that the applicable standard of review was abuse of discretion and that a court reviews an agency’s decision directly. A party seeking to overturn an agency’s general plan consistency determination bears the burden of showing why, based on all the evidence in the record, no reasonable person could have reached the same conclusion. Here, the court found the appellants had failed to show that the zoning excluded any use other than residential (the zone was, after all, low density with an office/planned development combining district), and that appellants’ conclusory arguments that the city council failed to make express findings regarding general plan consistency between the project and the zoning of the subject property, did not illustrate any unreasonableness on the part of the city.

Appellants were dissatisfied with the city’s consideration and inclusion of the general plan conformity issue in the draft EIR, as well as in the response to comments (final EIR). However, the appellate court found that the city’s EIR was required to evaluate the project’s consistency with the general plan only if the project would, in fact, be inconsistent with the general plan (which here, it would not). The court further held that the city’s response to appellants’ comments regarding this issue complied with CEQA Guidelines section 15088.

Traffic Baseline

The most significant and interesting discussion in this case pertained to traffic baseline. Appellants challenged the traffic impact analysis in the EIR, claiming the EIR improperly used hypothetical background conditions instead of the true existing conditions as the traffic baseline. The city and real party countered that CEQA does not mandate the use of a particular baseline and a baseline that deviates from existing conditions is allowed under the circumstances at issue (so long as there is substantial evidence supporting the deviation). Quoting from the Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, the appellate court stated that an EIR can take into account the normal increase in traffic over time. The draft EIR included an analysis of traffic, which looked at existing conditions, background conditions, project conditions, and cumulative conditions (2020) of the project. The court concluded that appellants did not carry their burden in illustrating how the evidence supporting the city’s decision on baseline was lacking. Then, the appellate court went on to distinguish Sunnyvale West Neighborhood Assn., et al. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, decided by the same appellate district (but with a different panel of justices) rationalizing that “the traffic baselines included in the EIR were not limited to projected traffic conditions in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.”

Aside from the fact that a different panel of justices decided this case, this opinion is hard to reconcile with that of the Sunnyvale West case. For instance, in this case, the city and real party argued that “the city’s choice of baseline includes only reliable data that realistically describes traffic conditions that will exist in the area with the new medial office buildings.” [Italics added.] Such reasoning certainly appears to indicate that a future – beyond approval – time frame was being used as the baseline in the traffic study – not the existing conditions.

One way I see to reconcile the Pfeiffer casefrom the Sunnyvale West case is to accept that the different justices in the Sixth Appellate District Court of Appeals addressed two different issues. The justices deciding Sunnyvale West looked at whether the future-based baseline on traffic impacts used in the EIR was proper; the justices in Pfeiffer looked at whether the EIR adequately identified the project’s significant environmental traffic impacts. (Success in a case is determined, in large part, in how you frame the issues.) Additionally, from a factual perspective the EIR in the Pfeiffer case clearly included analyses of traffic impacts based on existing conditions, background conditions, project conditions and cumulative conditions, whereas in Sunnyvale West, the city really only analyzed traffic impacts based on future conditions in 2020.

Traffic Noise Baseline

On the issue of traffic noise impacts, appellants argued the city used a hypothetical background traffic baseline and thus, could not analyze the project’s noise impacts on the existing environment. The court disagreed and held that the appellants failed to bear the burden of proving the EIR was legally inadequate because the EIR properly analyzed existing plus project conditions over existing traffic noise levels, as well as the cumulative traffic noise impacts of the project. The court distinguished the Sunnyvale West case once again stating that the EIR showed the existing traffic noise levels were measured and compared with existing ambient noise levels.

Mitigation Measures and Alternatives

The final issue on appeal was whether the EIR was internally inconsistent on the conclusion of the project’s construction noise impacts, and then whether the mitigation measures and alternatives for the project’s construction noise impacts were adequate. Appellants argued that because the EIR summary indicated the impact would be reduced down to significant, it was internally inconsistent since the analysis showed the impact as significant and unavoidable. The court found this error irrelevant since the EIR properly analyzed the mitigation measures and alternatives of the impact. Appellants further argued that the city was required to analyze mitigation measures or alternatives that would lessen the impact of noise construction to less than significant (down from significant and unavoidable). Notably, the EIR contained 11 mitigation measures to address the construction noise impacts. The court stated that “the relevant CEQA provisions do not require analysis of mitigation or alternatives that would reduce the impact of construction noise to a level of insignificance” and that the appellants failed to cite any authority supporting such a proposition.

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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