By Kate J. Hart
The most recent California Environmental Quality Act (“CEQA”) case on selecting a project baseline is Sunnyvale West Neighborhood Assn., et al. v. City of Sunnyvale City Council (December 16, 2010, H035135). In this case, the City of Sunnyvale (“City”) proposed to construct the Mary Avenue Extension project, a four-lane northerly extension of Mary Avenue, including light rail transit tracks, over two freeways to Eleventh Avenue. The City’s environmental impact report (EIR) analyzed the project and its impacts based on 2020 conditions, as opposed to present day conditions. A neighborhood group sued to challenge the approval of the project. The superior court ruled in the neighbor’s favor and the City appealed. The Sixth Appellate District Court upheld the trial court’s decision holding that despite the City’s arguments the project was a traffic congestion-relief project, there is no provision of CEQA which allows a roadway infrastructure project to be evaluated differently than other projects. Further, even if the court was to assume the decision to use the projected 2020 conditions as a baseline was proper, it found the administrative record was devoid of any substantial evidence to support the decision to deviate from the norm of using current conditions as baseline for project analysis.
According to the appellate court, the draft EIR contained numerous flaws with respect to the traffic impacts analysis. For example, the draft EIR described the existing roadway network and contained information regarding existing traffic conditions, but it assumed that numerous roadway improvements in the project area would be in place by 2020, regardless of the proposed project. Further, the draft EIR failed to provide information regarding average daily trips under existing conditions with the project and thus, no direct comparison could be made to existing conditions without the project. Additionally, there was no analysis of how the project would change the delay and level of service at various intersections under the existing conditions.
Notably, the draft EIR found only one significant impact for traffic (deterioration at the intersection of Mary and Maude Avenues) which was reduced to a less-than-significant impact.
The noise analysis in the draft EIR was also problematic. For instance, the threshold for noise was stated as “a substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project.” [Emphasis added.] Based on this threshold, there was no analysis of noise impacts with the project so there could be no comparison of impacts with versus without the project. The draft EIR concluded that – based on future 2020 traffic volumes – the project would only be responsible for a traffic noise level increase of less than one decibel above the 24-hour average of noise levels expected as a result of General Plan build-out, and that such increase would not be measurable or exceed the threshold for noise and thus, would not result in significant noise impacts. However, the EIR did not analyze whether the project’s traffic-related noise impacts on the existing environment would reach the stated thresholds of significance.
Additionally, the Court found the air quality impacts were not properly analyzed. The draft EIR stated that the project would accommodate existing and future traffic as opposed to create traffic. The draft EIR concluded there would not be any significant air quality impacts associated with the project because (1) the project would improve long-term air quality by providing an alternate north-south route of travel, alleviating congestion on some routes, and (2) because carbon monoxide would not exceed standards along Mary Avenue. However, the draft EIR did not describe existing air quality conditions in the project area so it was impossibly to truly ascertain what the air quality impacts of the project would be.
Oddly, the growth-inducing section of the draft EIR indicated that the project would cause growth and that growth would result in increased traffic, noise, air pollution, and water pollution.
The appellate court highlighted the peer review on the draft EIR. In it, a consultant pointed out that the baseline issue was of concern because using the base year of 2020 could underestimate the impacts of the project, especially if the project would get built before the base year used. The peer review consultant also noted that if the draft EIR was circulated without an analysis of existing conditions, it would need to be revised to provide the correct analysis, which would likely include increased significant impacts which may or may not be able to be mitigated, and that could trigger a need for recirculation.
The appellate court acknowledged that “an agency may exercise its discretion to apply appropriate methodology to determine the ‘baseline’ existing conditions.” It listed as an example the instance when traffic congestion has temporarily decreased due to an unusually poor economy – in this event, an agency might use historical data and traffic modeling to determine generally existing conditions. Conversely, whether evidence indicates traffic levels are expected to increase significantly due to other projects occurring in the area, projected traffic levels as of the expected date of project approval (not construction) may be appropriate.
In response to the City’s argument that the proposed road extension was a “traffic congestion relief project,” the Court noted that there is no provision of CEQA or the Guidelines that allows roadway infrastructure to be evaluated differently than other projects. It further emphasized that road infrastructure projects aimed at reducing regional traffic problems can still have growth-inducing impacts with indirect adverse impacts on the environment and could have adverse environmental impacts in the immediate vicinity such as localized increase in traffic, noise and air pollution, which need to be analyzed by comparing the proposed project to existing conditions.
The Court held that while deviations for the normal baseline standard of existing conditions can be permitted, the record in this case did not contain substantial evidence to support a decision to deviate. Specifically, the court stated that the general manager’s comments both in writing and at the public hearing regarding why the City elected 2020 as its baseline did not constitute substantial evidence because “the year of the anticipated project completion was a mere guestimate.”
Ultimately, the Court decided that the City’s failure to analyze the project’s impacts based on existing conditions constituted a prejudicial abuse of discretion. In doing so, the Court seemed particularly troubled by the fact that the draft EIR failed to provide the public and the decision makers with an adequate analysis of various impacts of the project as compared to existing conditions.
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.