Judge: Joel R Wohlfeil, Case: 37-2022-00044215-CU-WM-CTL, Date: 2023-11-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 14, 2023

11/16/2023  01:30:00 PM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Writ of Mandate Hearing on Petition 37-2022-00044215-CU-WM-CTL CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN DIEGO CAUSAL DOCUMENT/DATE FILED: Notice - Other, 07/14/2023

The Petition (ROA # 29, 35, 37, 40) of Petitioners Cleveland National Forest Foundation and Coastal Environmental Rights Foundation ('Petitioners') for alternative and peremptory writs of mandate against Respondent County of San Diego ('Respondent' or 'County'), is DENIED.

This ruling is premised on the analysis set forth below.

The Request (ROA # 38) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh. '2' and declines to take judicial notice of Exh's '1' and '3.' A. Introduction This Petition has its genesis in a 2013 state law that changed the approach to assessing the transportation impacts of new development projects under CEQA. This change was intended to better align analysis of transportation-related environmental impacts with this state's climate and greenhouse gas reduction goals. Essentially, the legislation necessitated new CEQA Guidelines that would shift transportation analysis away from a focus on traffic congestion and toward 'vehicle miles traveled,' ('VMT'), which is viewed as a better proxy for the climate and air quality environmental impacts caused by vehicles.

This change was reflected in the adoption of Public Resources Code, section 21099, and CEQA Guidelines section 15064.3, which became effective July 1, 2020 (both discussed below). In response to this change, the County of San Diego adopted and issued an updated Transportation Study Guide ('TSG') on September 28, 2022. The TSG is used to evaluate transportation impacts of proposed land development projects within the jurisdiction of the County of San Diego.

Petitioners are two advocacy groups with an interest in protecting the natural environment from encroachment by development. Petitioners contend the County's TSG adopted 'thresholds of significance' that improperly exempt residential development from any need to analyze or reduce VMT.

Thus, the analysis in this ruling will focus on the procedures utilized to adopt and issue the TSG, and whether the thresholds set forth in the TSG are supported by substantial evidence.

B. Standard of Review After Adoption of Threshold of Significance The purpose of CEQA is to provide the public with knowledge of 'the basis on which its responsible officials either approve or reject environmentally significant action.' Laurel Heights Improvement Assn. Calendar No.: Event ID:  TENTATIVE RULINGS

2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL v. Regents of University of California (1988) 47 Cal. 3d 376, 392.

An informed public 'can respond accordingly to action with which it disagrees.' Id. Thus, the EIR mandated by CEQA 'protects not only the environment but also informed self-government.' Id. 'In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry 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.' Pub. Resources Code 21168.5.

Pursuant to section 21168.5, a public agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. Sierra Club v. County of Fresno (2018) 6 Cal. 5th 502, 512.

Judicial review of these two types of error differs significantly. Id. The Court determines 'de novo' whether the agency has employed the correct procedures, and must scrupulously enforce all legislatively mandated CEQA requirements. Id. In most cases, the question whether an agency has followed proper procedures will have a clear answer. Id. As to these legal requirements, the agency has no discretion, and courts will invalidate an EIR that fails to meet them. Id. The Court accords greater deference to the agency's substantive factual conclusions. Id. In reviewing for substantial evidence, the 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. Id. On factual questions, the Court's task is not to weigh conflicting evidence and determine who has the better argument. Id. The agency is the finder of fact and the Court must indulge all reasonable inferences from the evidence that would support the agency's determinations and resolve all conflicts in the evidence in favor of the agency's decision. Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal. App. 4th 256, 261.

Mere disagreement is insufficient. Center for Biological Diversity v. Department of Forestry & Fire Protection (2014) 232 Cal. App. 4th 931, 948.

Instead, the burden is on Petitioners to affirmatively show there was no substantial evidence in the record to support the findings. Id. 'A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, noncompliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.' Guidelines at 15064.7(a).

Thresholds of significance may assist lead agencies in determining whether a project causes a significant impact on the environment. Guidelines at 15064(b)(2).

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2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL Thresholds only define the level at which an environmental effect 'normally' is considered significant, but they do not relieve the lead agency of its duty to determine the significance of an impact independently.

Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal. 4th 204, 230, 231.

Thresholds of significance generally promote predictability and efficiency when the agencies determine whether to prepare an EIR. McCann v. City of San Diego (2021) 70 Cal. App. 5th 51, 75.

Public agencies are 'encouraged to develop and publish thresholds of significance that the agency uses in the determination of the significance of environmental effects.' Guidelines at 15064.7(b).

Thresholds of significance must be adopted by ordinance, resolution, rule or regulation, and developed through a public review process. Id. They must be supported by substantial evidence. Id. CEQA grants agencies discretion to develop their own thresholds of significance. Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal. App. 4th 1059, 1068.

CEQA requires that a threshold must be formally adopted if it is for 'general use'; i.e., for use in evaluating significance in all future projects. Id. Thresholds may be employed at various stages of CEQA review, but are not determinative and cannot be applied in a way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant. California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2016) 2 Cal. App. 5th 1067, 1081.

The lead agency has substantial discretion in determining the appropriate threshold of significance to evaluate the severity of a particular impact. Jensen v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, 885.

In exercising its discretion, a lead agency must necessarily make a policy decision in distinguishing between substantial and insubstantial adverse environmental impacts based, in part, on the setting.

North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal. App. 4th 614, 625.

'The fact that a particular environmental effect meets a particular threshold cannot be used as an automatic determinant that the effect is or is not significant .... [A] threshold of significance cannot be applied in a way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant ....' Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th 1099, 1109 (internal citations omitted).

'Substantial evidence' means '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.' Guidelines at 15384(a).

Whether a fair argument can be made is 'determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, [and] evidence which is clearly erroneous or inaccurate ... does not constitute substantial evidence.' Id. 'Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.' Id. at (b).

C. The TSG and Its Thresholds Are Not A 'Project' Subject to CEQA As discussed above, thresholds of significance must be adopted by ordinance, resolution, rule or Calendar No.: Event ID:  TENTATIVE RULINGS

2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL regulation, developed through a public review process, and must be supported by substantial evidence.

Guidelines at 15064.7(b).

A threshold for general use is subject to CEQA public adoption guidelines. Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal. App. 5th 892, 903.

However, the public adoption of a threshold does not necessarily mean it is a 'project' subject to the rigors of the CEQA process. This Court agrees with Respondent: the adoption of a threshold is not a 'project.' A 'project' is 'an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: ...

¶ ... (a) An activity directly undertaken by any public agency .... ¶ ... (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies .... ¶ ... (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.' Pub. Resources Code 21065.

There is a two-pronged test for determining whether a public agency's action qualifies as a project under CEQA. San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal. App. 4th 1356, 1377.

The first consideration is whether there has been an activity directly undertaken by a public agency. Id. The second test for a 'project' is whether the activities have a 'potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.' Id. In California Building Industry Assn '(CBIA') v. Bay Area Air Quality Management Dist. (Cal. Ct. App. 2013) 161 Cal. Rptr. 3d 128 (review granted and opinion superseded (Cal. 2013) 164 Cal. Rptr. 3d 552, and rev'd (2015) 62 Cal. 4th 369) the appellate court directly addressed whether adopting a threshold of significance amounted to a 'project' under CEQA.

The subsequent state Supreme Court opinion superseded the appellate opinion. However, importantly, the scope of review was limited to a different issue. California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal. 4th 369, 381.

The Supreme Court expressly 'declined ... to review whether the District's adoption of the 2010 thresholds constituted a project subject to environmental review under CEQA ....' Id. at fn. 6.

On remand back to the Court of Appeal, the Court did not disturb its prior decision that thresholds were not a project requiring a CEQA review. See California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2016) 2 Cal. App. 5th 1067, 1087 ('While we do not rule out the possibility that the Receptor Thresholds might be used by an agency for such a purpose, District has not provided us with a concrete example of such a use and we do not rely on this hypothetical purpose in deciding, as we discuss below, that the Receptor Thresholds are not invalid on their face.').

Pursuant to California Rules of Court, Rule 8.1115(e)(2), the Court of Appeal opinion 'is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.' Petitioners' reply brief argues that the Rules of Court in effect when the CBIA opinion issued mandate that the appellate opinion, as a whole, is no longer citable. This Court disagrees. However, even if this argument had merit, the parties cite no other authority that directly addresses whether adopting a threshold of significance constitutes a 'project' under CEQA. Therefore, this Court considers the CBIA Calendar No.: Event ID:  TENTATIVE RULINGS

2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL opinion as persuasive, and will utilize and follow the reasoning stated within the decision.

In the CBIA case, CBIA brought a petition for writ of mandate to challenge the air quality management district's thresholds of significance for certain air pollutants, alleging that the district should have conducted a CEQA review prior to adopting the thresholds. The CBIA expressed concern the proposed thresholds were too stringent and would make it difficult to complete urban infill projects close to existing sources of air pollution. The Superior Court issued the writ and the district appealed. The Appellate Court reversed this decision. This opinion initially states: 'Though an EIR on the impact of the proposed Thresholds would have resulted in a single report setting forth the information in the preceding paragraph, it is difficult to see how that information would have substantively differed from what the District considered during the public review process it undertook before promulgating the Thresholds. Any party objecting to the substance of the Thresholds as unsupported by substantial evidence could file a writ of mandate challenging them on that basis, as CBIA has done .... Requiring an EIR in addition to the process already in place would result in a duplication of effort, at taxpayer expense and to little if any purpose ....

While the definition of a 'project' under CEQA is broad ..., it should not be stretched so far as to require CEQA review in addition to the public hearings and substantial evidence standard already required for the promulgation of thresholds of significance under CEQA Guidelines section 15064.7. An interpretation of a statute or regulation, even one that might flow from its literal language, should be rejected when it is contrary to the apparent intent of the statute or regulation or would result in absurd consequences ....' Id. at 140, 141 (emphasis added, internal citations omitted).

The CBIA opinion continues by providing much more detail and analysis supporting why adoption of thresholds does not constitute a 'project': 'As to the first prong, the promulgation of the Thresholds by resolution is akin to an ordinance and can be viewed as an activity undertaken directly by the District. (See Plastic Bag Coalition, supra, 52 Cal. 4th at p. 171, fn. 7.) The Thresholds can also be viewed as a component of '[a]n activity that involves the issuance to a person of a ... permit, license, certificate, or other entitlement for use by one or more public agencies' in the sense they may be utilized for CEQA review of projects built by private individuals for which permits or other approvals are required. (Pub. Res. Code, § 21065.) In any case, 'CEQA generally applies 'to discretionary projects proposed to be carried out or approved by public agencies ....' ' (Concerned McCloud Citizens v. McCloud Community Services Dist. (2007) 147 Cal. App. 4th 181, 191.) Taking the first view, that the promulgation of the Thresholds was an activity directly undertaken by the District, that activity did not effect any direct change in the environment and can amount to a 'project' only if the Thresholds may cause 'a reasonably foreseeable indirect physical change in the environment' under the second prong of the analysis. (Pub. Res. Code, § 21065; CEQA Guidelines, § 15378(a).) An 'indirect physical change in the environment' is 'a physical change in the environment which is not immediately related to the project, but which is caused indirectly by the project.' (CEQA Guidelines, § 15064(d)(2).) 'A change which is speculative or unlikely to occur is not reasonably foreseeable.' (CEQA Guidelines, § 15064(d)(3).) CBIA's claim that the Thresholds will have a reasonably foreseeable effect on the environment is predicated on the assumption the Thresholds will make it more difficult for developers to build residential projects in urban areas, thus causing more housing to be built in suburban and currently rural areas. For the Thresholds to result in the displaced development predicted by CBIA, the following would have to occur: (1) a lead agency charged with approval of a project would have to apply the Thresholds to that project; (2) the agency would have to find the project's impacts exceeded the Thresholds; (3) the impacts would have to be deemed significant for purposes of triggering an EIR; (4) absent the Calendar No.: Event ID:  TENTATIVE RULINGS

2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL Thresholds, a finding of significance would not have been made; (5) the agency would have to disapprove the project rather than adopting mitigation measures or filing a declaration of overriding concerns, or the developer would have to abandon the project in response to the agency's actions; (6) the developer would have to move the project elsewhere; (7) that 'elsewhere' would have to be in a location outside the urban center where the project had been previously sited; (8) the newly sited project would have to be approved following CEQA review by the lead agency in the new jurisdiction; (9) people who would otherwise have lived in the urban area would have to move to the newly sited project but continue to commute to the urban area; and (10) this sequence of events would have to be repeated with sufficient frequency for the increase in traffic attributable to this displaced development to change the physical environment. While such a scenario is possible, it is too attenuated and speculative to be reasonably foreseeable, and it does not require CEQA review prior to the promulgation of the Thresholds themselves.

We next consider the Thresholds as a component of CEQA review necessary for the approval of future projects. To trigger CEQA review, an agency's action must 'be 'a necessary step in a chain of events which would culminate in physical impact on the environment.' ' (Kaufman, supra, 9 Cal. App. 4th at p. 473 [establishment of community facilities district to fund acquisition of school sites was not a 'project'].) A decision by a public agency that does not commit the agency to a particular course of action does not amount to the approval of a project. (Ibid.; see also Citizens to Enforce CEQA v. City of Rohnert Park (2005) 131 Cal. App. 4th 1594, 1600–1601.) '... CEQA review is premature if the agency action in question occurs too early in the planning process to allow meaningful analysis of potential impacts. Although environmental review must take place as early as is feasible, it also must be 'late enough to provide meaningful information for environmental assessment.' ' (Friends of the Sierra,supra, 147 Cal. App. 4th at pp. 654–655.) Teasing out the extent to which undefined future projects might be built or abandoned as a result of the Thresholds, and the extent to which land development projects might be relocated to a more suburban location, would require a prescience we cannot reasonably demand of the District. No public agency other than the District is committed to using the Thresholds, and the District does not act as the lead agency for the type of residential and commercial projects CBIA alleges will be displaced.

Moreover, the Thresholds are not conclusive even when they are used by another agency; they simply set the levels at which an environmental effect will normally be deemed significant or insignificant.

(CEQA Guidelines, § 15064.7(a); see Mejia v. City of Los Angeles (2005) 130 Cal. App. 4th 322, 342; Communities, supra, 103 Cal. App. 4th at pp. 111 – 113 [invalidating former version of CEQA Guidelines section 15064, subdivision (h), which effectively directed agency to find effect was not significant when project complies with applicable regulatory standard]; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th 1099, 1108–1109.) Thus, even the disapproval or abandonment of a project to which the Thresholds had been applied could not easily be ascertained to be the product of the Thresholds per se.

....

Also distinguishable is the decision in Plastic Pipe, supra, 124 Cal. App. 4th 1390. In that case, the California Building Standards Commission ordered CEQA review of a proposed uniform code provision allowing builders to use cross-linked polyethylene (PEX) pipes .... A writ proceeding was brought by a manufacturer of PEX pipe, in which it was alleged no CEQA review was required .... The appellate court disagreed because there was evidence PEX could have a deleterious effect on the environment .... It rejected a claim by the manufacturer that the causal link between the regulation and environmental change was too remote because PEX was only one of many materials available and there was no certainty it would be used in any particular work of construction .... The court concluded the approval of PEX made its use and the damage that might result from its use reasonably foreseeable .... This seems unremarkable because the approval of a particular building material will almost certainly result in its use on some project; the connection between the Thresholds and displaced residential development is far more tenuous.

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2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL Similarly, in Mojave Desert, supra, 178 Cal. App. 4th 1225, the court considered the enactment of a local air district rule allowing stationary sources of pollution to offset their emissions of particulate matter by paving dirt roads (which would in turn reduce the particulate matter generated by traffic on dirt roads) .... The plaintiffs challenged the new rule allowing the offset, arguing that particulate matter from combustion and stationary sources is not equivalent to, and is in fact more damaging than, particulate matter caused by traffic on dirt roads .... The air district acknowledged that its adoption of the offset rule was a 'project' under CEQA, but argued unsuccessfully it was exempt....

The air district's concession in Mojave Desert that the offset rule was a 'project' was not surprising.

By allowing polluters to utilize paving offsets, the rule would clearly change the physical environment: more combustion-related particulate matter would be emitted; the act of paving roads would produce additional emissions; wildlife and plants would be affected by the paving; and new land development would be encouraged due to the improved access to certain areas .... The Thresholds do not authorize the same sort of specific and immediate change; in fact, the indirect change on which CBIA purports to rely would come from the abandonment or disapproval of a particular project, an event which, in the moment, would effect no change on the physical environment at all.

For all of these reasons, we conclude no CEQA review was required before the District promulgated the Thresholds. Because we agree with the District the Thresholds do not qualify as a project, we need not consider the District's alternative claim that the commonsense exemption to CEQA applies.' Id. at 141 – 143 and 145 (emphasis added, footnote and some internal citations omitted).

As discussed in the CBIA opinion, the Resolution by the County adopting the TSG is '[a]n activity directly undertaken by [a] public agency' under section 21065(a). See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th 155, 171, fn. 7. Further, the TSG and its thresholds can also be viewed as a component of '[a]n activity that involves the issuance ... of a ... permit ... or other entitlement' because the TSG thresholds may be utilized for CEQA review of projects for which permits or other approvals are required.

On the other hand, the 'activity' by the County adopting the TSG did not, by itself, cause any 'direct physical change in the environment,' and can amount to a 'project' only if the TSG thresholds may cause 'a reasonably foreseeable indirect physical change in the environment.' 'An indirect physical change in the environment is a physical change in the environment which is not immediately related to the project, but which is caused indirectly by the project. If a direct physical change in the environment in turn causes another change in the environment, then the other change is an indirect physical change in the environment. For example, the construction of a new sewage treatment plant may facilitate population growth in the service area due to the increase in sewage treatment capacity and may lead to an increase in air pollution.' Guidelines at 15064(d)(2).

'An indirect physical change is to be considered only if that change is a reasonably foreseeable impact which may be caused by the project. A change which is speculative or unlikely to occur is not reasonably foreseeable.' Id. at (d)(3).

In this case, the TSG has no potential to cause a physical change in the environment because it does not authorize or ban any development or exempt any project from CEQA review. Instead, it is merely reflects a policy objective of the County to locate denser residential development in designated 'infill' areas near potential transit corridors.

The thresholds of significance within the TSG create no reasonable foreseeability of an impact because the likelihood and extent of any development is speculative at best. Teasing out the extent to which undefined future projects might be built as a result of the thresholds would be impossible. These policy objectives are one of many potential variables that will be studied and addressed during the CEQA review process for specific projects. The TSG is not a foreseeable and necessary step for any potential Calendar No.: Event ID:  TENTATIVE RULINGS

2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL future impacts because compliance with a threshold does not relieve a lead agency of the obligation to consider substantial evidence indicating a potentially significant impact. The TSG's thresholds do not create a presumption that a project will not result in significant impacts related to air quality, noise, safety, or any other impact associated with transportation. In sum, prior CEQA review was not required for the TSG, which is itself a CEQA review document.

D. Determining the Significance of Transportation Impacts, Generally Potential metrics to measure transportation impacts may include vehicle miles traveled, vehicle miles traveled per capita, automobile trip generation rates, or automobile trips generated. Pub. Resources Code 21099(b)(1).

Any models used to analyze transportation impacts should be accurate, reliable and consistent with the intent of this section. Id. '... [A]utomobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion, shall not be considered a significant impact on the environment pursuant to this division, except in locations specifically identified in the guidelines, if any.' Id. at (b)(2).

The Guidelines developed pursuant to section 21099 state that, generally, vehicle miles traveled is the most appropriate measure of transportation impacts. Guidelines at 15064.3(a).

VMT refers to the amount and distance of automobile travel attributable to a project. Id. Other relevant considerations may include the effects of the project on transit and non-motorized travel, but 'a project's effect on automobile delay shall not constitute a significant environmental impact.' Id. With respect to land use projects, VMT exceeding an applicable threshold of significance may indicate a significant impact. Id. at (b)(1).

'Generally, projects within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact. Projects that decrease vehicle miles traveled in the project area compared to existing conditions should be presumed to have a less than significant transportation impact.' Id. If existing models or methods are not available to estimate the VMT for the particular project being considered, a lead agency may analyze the project's vehicle miles traveled qualitatively. Id. at (b)(3).

Such a qualitative analysis would evaluate factors such as the availability of transit and proximity to other destinations. Id. A lead agency has discretion to choose the most appropriate methodology to evaluate a project's VMT, including whether to express the change in absolute terms, per capita, per household or in any other measure. Id. at (b)(4).

A lead agency may use models to estimate a project's VMT, and may revise those estimates to reflect professional judgment based on substantial evidence. Id. Any assumptions used to estimate VMT should be documented and explained in the environmental document prepared for the project. Id. E. Whether 'Infill Area (Plus Village) in Transit Opportunity Area' Threshold in TSG is Supported by Substantial Evidence Petitioners initially argue the infill area threshold conflicts with and undermines the 'Technical Advisory' Calendar No.: Event ID:  TENTATIVE RULINGS

2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL and CEQA. Contemporaneously with promulgation of CEQA Guidelines section 15064.3, the state also published a 'Technical Advisory on Evaluating Transportation Impacts in CEQA.' (AR 23305-40) 'This advisory contains technical recommendations regarding assessment of VMT, thresholds of significance, and mitigation measures. Again, OPR provides this Technical Advisory as a resource for the public to use at their discretion. OPR is not enforcing or attempting to enforce any part of the recommendations contained herein....' (AR 23307) 'Many practitioners are familiar with accounting for VMT in connection with long-range planning, or as part of the CEQA analysis of a project's greenhouse gas emissions or energy impacts. This document provides technical information on how to assess VMT as part of a transportation impacts analysis under CEQA.' (AR 23310) Section 21099 was enacted as part of Senate Bill No. 743 to further the Legislature's strategy of encouraging transit-oriented, infill development consistent with the goal of reducing greenhouse gases.

Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712, 725.

'During the last 10 years, the Legislature has charted a course of long-term sustainability based on denser infill development, reduced reliance on individual vehicles and improved mass transit, all with the goal of reducing greenhouse gas emissions.' Id. at 729. The Technical Advisory was promulgated to flesh out these policy goals and to aid public agencies in making these goals more achievable. See AR 23307.

As cited within Respondent County's opposition memorandum, there is substantial evidence in the Administrative Record that the TSG infill threshold implements the goals and policies set forth above by encouraging infill development. As a policy document it is consistent with the 'Technical Advisory' and CEQA. Petitioners' argument lacks merit.

Petitioners also argue there is no evidence to support the determination that infill area projects would have a less than significant transportation impact. This argument also lacks merit. As set forth within Respondent's opposition memorandum, there is substantial evidence in the Administrative Record supporting this determination. The TSG is premised on SANDAG data and modeling. A quantitative definition for infill development was utilized using household density, intersection density and job accessibility. This data provides the foundation for defining infill locations within the unincorporated County.

The County found that development in more dense areas with high job accessibility leads to diversity in land use, demand for transit, 'multimodal infrastructure (walking and biking)' and shorter vehicle trips.

The County concluded the TSG will reduce VMT by encouraging infill development 'within VMT efficient and Infill Areas.' This is substantial evidence supporting the infill area designation.

Petitioners also argue that the infill area threshold violates the CEQA directive to focus on tangible transit. This argument also lacks merit. There is substantial evidence within the Administrative Record that the infill areas are based on existing data for travel patterns and density. The TSG represents a starting point only. Any subsequent specific project approval will address whether transit exists (or is likely to exist) to reduce or eliminate traffic impacts.

Petitioners also argue the lack of data supporting the infill area threshold is compounded by the County's decision to expand the area to include the surrounding 'village.' This argument lacks merit. There is substantial evidence in the Administrative Record that this 'village buffer' is necessary to account for inconsistencies with adjacent land-uses, even though such land uses are consistent with the surrounding uses. These village areas are identified in the County's General Plan, and support the goal of reducing VMT.

F. Whether the Small Project Screening Threshold is Unlawful The TSG utilizes a separate small project threshold. It provides that projects generating less than 110 daily vehicle trips ('ADT') may be presumed to have a less-than-significant transportation impact, absent substantial evidence to the contrary.

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2980312 CASE NUMBER: CASE TITLE:  CLEVELAND NATIONAL FOREST FOUNDATION VS COUNTY OF SAN  37-2022-00044215-CU-WM-CTL This threshold is derived from the state Technical Advisory, which states: 'Many local agencies have developed screening thresholds to indicate when detailed analysis is needed. Absent substantial evidence indicating that a project would generate a potentially significant level of VMT, or inconsistency with a Sustainable Communities Strategy (SCS) or general plan, projects that generate or attract fewer than 110 trips per day generally may be assumed to cause a less-than significant transportation impact.' The footnote within the Technical Advisory refers to a similar categorical exemption, but does not serve to limit the screening threshold. The footnote states, in part: 'Therefore, absent substantial evidence otherwise, it is reasonable to conclude that the addition of 110 or fewer trips could be considered not to lead to a significant impact.' The Technical Advisory and the CEQA Guidelines categorical exemption support the conclusion that 'small projects' generating 110 daily trips or less can be presumed to have a less-than-significant impact. Also, 'automobile trips generated' is a recognized metric to measure transportation impacts.

See Pub. Resources Code 21099(b)(1).

Finally, there is substantial evidence justifying use of this metric within the local jurisdiction. Also, this threshold serves as a general starting point for 'normal' levels of significance. This threshold cannot be used for an automatic finding of non-significance without first addressing project specific evidence and findings.

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