Judge: Mitchell L. Beckloff, Case: 21STCP01247, Date: 2023-01-18 Tentative Ruling

Case Number: 21STCP01247    Hearing Date: January 18, 2023    Dept: 86

PROTECT OUR GLENDALE v. CITY OF GLENDALE

Case Number: 21STCP01247

Hearing Date: January 18, 2023

[Tentative]       ORDER DENYING PETITION FOR WRIT OF MANDATE

This proceeding challenges the Glendale Citywide Pedestrian Plan (Project), a long-term policy document to improve the pedestrian experience in the City of Glendale. The Project is “an initiative to make Glendale a safe, pleasant, and convenient place to walk—whether for work, school, shopping, or just for fun.” (AR 38.) The Project is a plan with eight chapters identifying “projects, programs, and policy changes needed to make Glendale an even better and safer place to walk.” (AR 38.)

Petitioner, Protect our Glendale, asserts Respondents, City of Glendale, Glendale City Council, and the Community Development Department (collectively, Respondents or the City) failed to comply with its obligations under Public Resources Code section 21000, et seq., the California Environmental Quality Act (CEQA), when it approved the Project in March 23, 2021. Petitioner contends the City should have prepared an environmental impact report (EIR) to consider the Project instead of relying on a mitigated negative declaration (MND). Petitioners seek an order setting aside the City’s approval of the Project and requiring an EIR be completed and considered prior to any future approval of the Project by the City.

Additionally, Petitioner contends the City violated the Vehicle Code.

Respondents oppose the petition.

Petitioner’s Request for Judicial Notice in Support of Petitioners’ Opening Brief (Exhibits A through B) is denied as irrelevant extra-record evidence. (Petitioner’s alternative relief moving the court to augment the record is denied.)[1]

Respondents’ Request for Judicial Notice in Support of the Opposition to Petitioners’ Opening Brief (Exhibits A through B) is denied; the exhibits are irrelevant given the court’s ruling on Petitioner’s request for judicial notice.

The petition is denied.

As a preliminary matter, the City advises pedestrian plan projects, like the Project at issue here, are now exempt from CEQA’s requirements as a result of Senate Bill 922, effective January 1, 2023. While the change in the law may not moot the petition’s CEQA allegations (see Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1190 n. 7), the change would allow the City to re-adopt and approve the Project without CEQA review if the court granted the relief requested in the petition. The change in the law, however, would not affect Petitioner’s claim based on the Vehicle Code.

STATEMENT OF THE CASE

The Project:

The Project is a “comprehensive, centralized, and coordinated approach to improving pedestrian infrastructure, safety, and demand in Glendale. The Plan will make Glendale a safer, more pleasant, and more convenient place for walking.” (AR 2, 33.)

The City’s Approval:

The City adopted the Project’s MND on March 23, 2021 and approved the Project. (AR 6-8.) The City filed its notice of determination on March 24 and April 22, 2021. (AR 3, 4)

STANDARD OF REVIEW

Judicial review of an agency’s compliance with CEQA and legislative or quasi-legislative actions, “ ‘shall extend only to whether there was a prejudicial abuse of discretion,’ ” which 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.’ ” (Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426 [citing Pub. Resources Code, § 21168.5].)

When a local agency intends to carry out or approve a project covered by CEQA, the agency must prepare and certify the completion of an environmental impact report (EIR) if the project may have a significant effect on the environment. (Pub. Resources Code, § 21151, subd. (a).) “An EIR is required whenever it can be ‘fairly argued on the basis of substantial evidence that the project may have significant environmental impact.’ [Citations.]” (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1016-1017.)

When, on the other hand, “[t]here is no substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment,” the lead agency “shall adopt a negative declaration to that effect.” (Pub. Resource Code, § 21080, subd. (c)(1); Guidelines,[2] §§ 15064, subd. (f)(3), 15070.) The agency “shall” prepare a MND when:

“[a]n initial study identifies potentially significant effects on the environment, but (A) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (B) there is no substantial evidence, in light of the whole record before the lead agency, that the project, as revised, may have a significant effect on the environment.” (Pub. Resource Code, § 21080, subd. (c)(2); Guidelines, §§ 15064, subd. (f)(2), 15070.)

Finally, “[w]here the alleged defect is that the agency has failed to proceed in the manner required by law, the court determines de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated requirements.” (Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839, 845.)

ANALYSIS

1. Whether the City Violated CEQA by Failing to Prepare an EIR for the Project:

Petitioner argues there is fair argument the Project may have “individual and cumulative impacts, including to traffic, air quality, greenhouse gas [] emissions, land use, public services and human beings.” (Opening Brief 7:16-18.) Petitioner asserts the “City summarily disposed of all impacts (except for traffic), with erroneous and conclusory claims.” (Opening Brief 7:18-19.) Finally, Petitioner contends the “City proposed illusory mitigating measures [] and improperly deferred mitigation [for traffic impacts].” (Opening Brief 7:19-20.)

The City argues Petitioner fails to meet its burden of demonstrating error. Petitioner—relying predominantly on its own attorney’s letter in the administrative record to contradict the MND’s conclusions—fails to show a fair argument the Project may have significant environmental impacts. (Opposition 6:13-16.)

“ ‘CEQA excuses the preparation of an EIR and allows the use of a negative declaration when an initial study shows that there is no substantial evidence that the project may have a significant effect on the environment.’ [Citations.]” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 270; Pub. Resources Code, § 21080, subd. (c); Guidelines, § 15070, subd. (a).)

“ ‘Negative declaration’ means a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report.” (Pub. Resource Code, § 21064; see also Guidelines, § 15371.)

“When a court reviews an agency's decision to certify a negative declaration, the court must determine whether substantial evidence supports a ‘fair argument’ that the project may have a significant effect on the environment.” (County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544, 1579; see Pub. Resources Code, §§ 21080, subds. (c), (d); 21151.) An EIR is required where “there is substantial evidence that any aspect of the project, whether individually or cumulatively, may cause a significant effect on the environment, regardless of whether the overall effect of the project is adverse or beneficial . . . .” (Guidelines, § 15063, subd. (b)(1).)

“The fair argument test is routinely described as ‘a low threshold requirement for the initial preparation of an EIR that reflects a preference for resolving doubts in favor of environmental review.’ [Citation.]” (Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 282.) “A logical deduction from the formulation of the fair argument test is that, if substantial evidence establishes a reasonable possibility of a significant environmental impact, then the existence of contrary evidence in the administrative record is not adequate to support a decision to dispense with an EIR.” (County Sanitation Dist. No. 2 v. County of Kern, supra, 127 Cal.App.4th at 1580; see Guidelines, § 15064, subd. (f)(1).) “Stated another way, if the . . . court perceives substantial evidence that the project might have such an impact, but the agency failed to secure preparation of the required EIR, the agency's action is to be set aside because the agency abused its discretion by failing to proceed ‘in a manner required by law.’ ” (Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002 [quoting Pub. Resources Code, § 21168.5].)

“ ‘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, § 15384, subd. (a).) It is not “overwhelming or overpowering evidence.” (Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 152.) “CEQA does not impose such a monumental burden . . . .” (Ibid.) Substantial evidence “includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” (Pub. Resource Code, § 21080, subd. (e)(1); accord Guidelines,

§ 15384, subd. (b).) “Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence.” (Guidelines, § 15384, subd. (a); Pub. Resources Code § 21080, subd. (e)(2).)

Traffic Impacts:

First, Petitioner argues the Project’s “traffic impacts are undisputed.” (Opening Brief 10:24.) Petitioner raises five issues related to traffic.

First, Petitioner notes the City adopted two mitigation measures TRANS-1 and TRANS-2 to address traffic impacts. (Opening Brief 10:25-11:3.) Petitioner asserts substantial evidence does not support the City’s findings TRANS-1 and TRANS-2 will reduce traffic impacts to less than significant.

Second, Petitioner contends additional traffic impacts will result from “lane removals, bulb-outs, street narrowing, [and] greenway . . . .” (Opening Brief 11:8.) Such modifications, according to Petitioner, are in dense areas on busier arterial streets which will result in spill-over traffic to narrower non-arterial streets. (Opening Brief 11:13-16.) Based on the effects of lane modification, Petitioner contends substantial evidence supports a fair argument that traffic impacts may result from the various “lane removals, bulb-outs, street narrowing, [and] greenway . . . .” (Opening Brief 11:8-12.)

Third, Petitioner argues the removal of street parking may cause traffic impacts. Eliminating parking, Petitioner reasons, causes “cars to drive around in search for parking.” (Opening Brief 11:18.)

Fourth, Petitioner asserts the Project may have traffic impacts because the City’s analysis relied upon “assumptions of increased transit or bike use, where [the] City did not establish, beyond speculations, that such increase is reasonably foreseeable or would reduce traffic impacts or congestion.” (Opening Brief 11:23-24.)

Finally, Petitioner contends the Project’s proposed changes “may have a cumulative traffic impacts along with” other plans and project approved by the City and a county bus transit project. (Opening Brief 12:8-11.) Such impacts, according to Petitioner, were not studied by the City. (Opening Brief 12:17.)

As noted earlier, it is Petitioner’s burden to demonstrate through substantial evidence there is a fair argument the Project may have a significant effect on the environment. (McCann v. City of San Diego (2021) 70 Cal.App.5th 51, 87.) Despite Petitioner’s citations to the administrative record, much of what Petitioner cites does not support a fair argument the Project may have a substantial effect on the environment.[3] Instead, the citations largely reference information about Project features which then Petitioner speculates may cause a substantial impact on the environment.

Petitioner argues its attorney’s letter to the City commenting on the Project constitutes substantial evidence. (AR 3263-3277.) Petitioner suggests the City misstates the law on substantial evidence. Petitioner correctly advises substantial evidence includes “reasonable inferences” and “facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (Reply 3:204 [citing Guidelines, § 15384, subds. (a), (b)] [emphasis in original].) Of course, while reasonable inferences and assumptions may constitute substantial evidence, such inferences and assumptions must be “predicated on facts . . . .” (Guidelines, § 15384, subd. (b).) Petitioner’s attorney’s arguments are largely not predicated on facts within the administrative record. (See, e.g., AR 3266. [“Removing lanes, road diets, or bulbouts may cause further accidents, may delay traffic, and may spill over the traffic from those reduced lane streets into the residential neighborhoods, thereby exposing more people to dangers.”]) Moreover, the facts stated—statistics concerning pedestrian deaths and vehicle crashes—do not inform on Petitioner’s attorney’s conclusions about the Project causing traffic congestion and spill over traffic into neighborhoods. (AR 3266.)

The court finds much of Petitioner’s fair argument “evidence” to be mere speculation. Petitioner’s attorney’s letter is insufficient to constitute substantial evidence. (Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 580. [“We conclude Pala's comment letter does not constitute substantial evidence under the applicable ‘fair argument’ standard because it consists almost exclusively of mere argument and unsubstantiated opinion, which are excluded from the definition of substantial evidence under CEQA.”])

Petitioner is correct, however, the MND acknowledges the Project may have a significant impact on traffic. (AR 102-103.) The MND reports “there are components of the [Project] that could reduce the vehicle capacity of intersections and/or increase congestion through physical changes at intersections that favor pedestrian movements . . . .” (AR 102.) The MND expressly identifies “bulb outs” as having the potential to “increase congestion.” (AR 102.)

The issue based on the City’s assessment about traffic impacts is whether the conditions attached to the MND (TRANS-1 and TRANS-2) sufficiently mitigate the environmental impacts. Petitioner’s burden is to demonstrate with substantial evidence there is a fair argument the mitigation measures are insufficient to mitigate the Project’s impacts. (Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 693.)

Petitioner first claims TRANS-1 and TRANS-2, the mitigation measures adopted to address potential traffic impacts, “are not supported by substantial evidence or defy common sense.” (Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1116-1117.)

The City contends its reliance on mitigation measures to reduce potential significant traffic impacts is expressly supported in the law. The City relies on Public Resources Code section 21064.5, which provides:

“ ‘Mitigated negative declaration’ means a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.”

Mitigation measures TRANS-1 and TRANS-2 require the City to engage in additional analysis prior to implementation of pedestrian projects “involving the elimination or removal of vehicle travel lanes” or “removing or narrowing through travel lanes” where such pedestrian projects would cause a significant impact under the City’s levels of service (LOS) or vehicle miles traveled (VMT) thresholds of significance.[4] After such analysis where it is determined the changes would exceed the thresholds, the design must be modified to eliminate the impacts to less than significant or the environmental impact must be offset by a beneficial effect from the Project, thereby effectively eliminating the impact.[5] (AR 31, 103.)

[The court raises questions for discussion by the City during argument in the section of this decision addressing Petitioner’s claim the mitigation measures are inadequate.]

The court finds the City’s mitigation measures here are appropriate in the context of a plan level environmental analysis where specific project level analysis will be required when future pedestrian projects are considered. [Where does the City commit, if at all, in the MND to further project level environmental analysis?] The details of the future project will inform on whether the City’s thresholds of significance would be exceeded and the design changes necessary to bring traffic impacts to less than significant. Requiring the City to evaluate pedestrian projects for locations not yet determined is not feasible or required for a plan level project. (See Guidelines, 15151 (evaluation of proposed project need not be exhaustive but should be reviewed in the light of “what is reasonably feasible”).]

“CEQA authorizes the preparation of various kinds of EIRs depending upon the situation, such as the subsequent EIR, a supplemental EIR, and a tiered EIR. (Pub. Resources Code, §§ 21166, 21068.5, 21093, 21094.)” Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1165.) Further, “[t]he degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR. [¶] . . . . An EIR on a construction project will necessarily be more detailed in the specific effects of the project than will be an EIR on the adoption of a local general plan or comprehensive zoning ordinance because the effects of the construction can be predicted with greater accuracy.”[6] (Guidelines, § 15146, subd. (a).)

Petitioner’s third argument about traffic stems from the removal of street parking. Petitioner contends there is substantial evidence of a fair argument the Project may have traffic and related impacts due to removal of street parking, which may cause cars to drive around in search for parking. (AR 31 [“City shall ensure that bulb outs would not extend beyond the parking lane . . .”; 44 [“2. Remove parking near intersection corners and replace with curb extensions”].) Petitioner’s proffer of substantial evidence of a fair argument appears to be the conclusion drivers will have to “drive around in search for parking.” (Opening Brief 11:18.) Petitioner does not reference any substantial evidence to support its claim and provides no facts about parking in the City; the claim is pure argument—that is, without regard to parking otherwise available in the City or parking available in the areas where spaces might be removed.

Petitioner cites Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. [School Bond Spending] (2013) 215 Cal.App.4th 1013, 1053 without analysis to support its position. Petitioner parenthetically notes School Bond Spending concerns “secondary impacts of parking on people.” (Opening Brief 11:21.)

While the court acknowledges parking issues can and do raise environmental issues (as in School Bond Spending), the court does not find Petitioner’s position or authority about parking environmental impacts persuasive in this context. As noted by the City, School Bond Spending, concerned a stadium lighting project at a suburban high school near residential streets where the project provided 174 less parking spaces than needed. Substantial evidence supported a fair argument of a significant impact on parking and thus the environment. The impact on the environment from parking required an EIR be prepared. (School Bond Spending, supra, 215 Cal.App.4th at 1053.)

Although the City admits some street parking may be impacted by some recommended improvements in the Project—in contrast to School Bond Spending—the City notes the Project does not propose any development which would require parking. (See also Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712, 727.)

Petitioner’s fourth traffic impacts claim contends the MND relies on speculative assumptions of increased transit or bike use. (Opening Brief 11:22-24.) Petitioner argues the City’s assumption about mass transit use is “even more attenuated now with COVID-19, since people are reportedly more susceptible to viruses in dense areas as in South Glendale and on buses.” (Opening Brief 12:3-5.) To support its fair argument claim, Petitioner cites commentary from 2010 addressing whether greenhouse gas emissions are reduced through bus transit (AR 3488-3498 [“bus transit today is not greener than driving a car”]), a statement suggesting “any proposal to achieve improvements in any of these through transit, including bus transit, must be based on a realistic presentation of the current situation” (AR 3493), Petitioner’s attorney’s letter opining about COVID-19 exposure and mass transit (AR 3268) and an attorney’s comment letter for a homeowner’s association citing a study correlating public transit and the spread of disease. (AR 3289-3290.)

The City contends the evidence relied upon by Petitioner does not constitute substantial evidence of a fair argument. (Opposition 9:25-10:14.)

Neither party sufficiently develops their position. Nonetheless, the burden is Petitioner’s. Petitioner must show through substantial evidence there is a fair argument the Project may have a substantial impact on the environment. Allegedly flawed assumptions made by the City without substantial evidence to support the argument does not inform on environmental impacts. The commentary (aside from its age) is not relevant and concerns about COVID-19 do not account address pedestrians and bicyclists.

Finally, Petitioner argues the Project may have cumulative traffic impact when considered with other planned projects. As noted by the City, however, the sources relied upon by Petitioner do not constitute substantial evidence of a fair argument. (Opposition 11:14-23.)

Moreover, as explained by the City, a project must contribute to an impact for the impact to be characterized as a project-related cumulative impact. Significant cumulative impacts caused by other projects is not evidence a proposed project’s impact is cumulatively considerable. (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175. [“In sum, the Court of Appeal erred by concluding there was substantial evidence to support a fair argument that Manhattan Beach's plastic bag ordinance might significantly affect the environment. While some increase in the use of paper bags is foreseeable, and the production and disposal of paper products is generally associated with a variety of negative environmental impacts, no evidence suggests that paper bag use by Manhattan Beach consumers in the wake of a plastic bag ban would contribute to those impacts in any significant way.”]; Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690; Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768, 782.)

Based on the foregoing, the court finds Petitioner has not met its burden of demonstrating with substantial evidence there is a fair argument the project may have a significant effect on the environment based on traffic impacts.

Air Quality and Greenhouse Gas (GHG) Impacts:

The MND reports the Project will result in a less than significant impact to air quality and greenhouse gas (GHG) emissions. (AR 77-78.) Petitioner argues, based on the unmitigated traffic impacts, the Project “may have related air quality and GHG impacts.” Petitioner takes issue with the City’s findings of less than significant impacts. (Opening Brief 13:20.)

Petitioner’s argument depends upon its unsuccessful assertions related to traffic impacts. Given Petitioner’s lack of success with its traffic impacts claim, Petitioner’s air quality and GHG emissions claims also fail.

First, Petitioner argues the MND improperly relies on TRANS-1 and TRANS-2 to reduce traffic impacts to insignificant levels. (AR 77.) The sufficiency of the mitigation measures is discussed below. [The court has raised questions for the City’s response on this issue.]

Petitioner notes an increase in pedestrians on the streets necessarily means sensitive receptors will be exposed to air pollutants and related odors, smog and/or pollutants. (AR 3273.) Petitioner’s argument relies on the City’s alleged inappropriate use of TRANS-1 and TRANS-2 as mitigation measures. That is, TRANS-1 and TRANS-2 will not ensure traffic impacts are reduced to less than significant such that pedestrians will be exposed to air pollutants and GHG emissions.

The court notes—as pointed out by the City—the Project is designed to encourage more walking in the City by making walking a more attractive option for people in the City. The MND explains, “Projects that would be implemented under the Plan are intended to enhance the existing pedestrian environment, with the larger objective of making walking a safer, more attractive and convenient mode of transportation within the City.” (AR 77.) Thus, the Project’s aim is to reduce driving and decrease emissions. (AR 87 [GHG emissions].)

Additionally, Petitioner argues the City provides no real analysis or support for the MND’s conclusion air quality impacts from the Project will be less than significant. (AR 77.) Despite Petitioner’s claim, Petitioner fails to provide substantial evidence of a fair argument the Project may result in significant impacts to air quality. As a practical matter, to the extent the City’s analysis in the MND is defective, Petitioner’s burden challenging it should be lessened. “Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.” (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.)

Moreover, the court finds the MND’s conclusion on air quality impacts adequate—that is, the City undertook a good faith effort to comply with its obligations under CEQA. (AR 77-78.) The City explained the Project contemplates “development of pedestrian improvements on the existing rights-of-way within the City. These improvements include addition of curb extensions, median refuge islands and zebra crosswalk markings . . . .” (AR 77.) The City also explained there may be “minor alterations to local pedestrian, bicycle, and vehicular circulation patterns” through the use of “bulb outs and lane modifications . . . .” (AR 77.) The City concluded the Project would not increase traffic congestion and related pollutants or GHG emissions. (AR 77.) The City provided “sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397; see also North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 637. [“Where, as here, the agency determines that a project impact is insignificant, an EIR need only contain a brief statement addressing the reasons for that conclusion.” [Cleaned up.].)

With respect to the MND’s GHG emissions impacts, Petitioner argues that “the MND’s single-page findings on GHG impacts fatally omit [the Project’s] cumulative GHG impacts.” (Opening Brief 14:13-14 [citing AR 87].) The MND’s analysis of GHG emissions is similar to the MND’s air quality impacts analysis.[7] (AR 87.) Petitioner fails to demonstrate how the analysis is deficient. Admittedly the MND does not expressly discuss cumulative effects, but the MND does conclude the Project will reduce GHG emissions:

“There is a growing recognition of the role that walking can make in reducing greenhouse gas (GHG) emissions by substituting motorized travel, particularly on short trips. Replacing short car trips with walking can be achieved by providing high quality infrastructure for walking that may influence day-to-day travel decisions. Since the Plan will result in public improvements to encourage pedestrian travel as a mode of transportation throughout the City, a reduction in the amount of greenhouse gas emissions is expected to occur. As a result, no impacts would occur.” (AR 87.)

Petitioner has not demonstrated how the City’s analysis is deficient. Petitioner has also not met its burden of demonstrating through substantial evidence there is a fair argument there may be a significant effect on the environment based on GHG emissions.

Third, Petitioner contends the MND’s GHG emissions analysis relies on compliance with the Greener Glendale Plan (GGP); Petitioner asserts the City’s reliance is misplaced because “there is no evidence or analysis to show how a 2012 GGP (AR 113) can reduce the subsequent 2021 [Project’s] individual or cumulative GHG impacts or its related subsequent changes in Glendale, including the growth-inducing 2018 SGCP or DSP, where ‘Moratorium was declared in 2018 for health and safety impacts of growing and exceeding density.’ ” (Opening Brief 14:15-20; AR 3274 [Moratorium].)

Although Petitioner challenges the analysis, Petitioner fails to identify a specific defect in the analysis or undermine the analysis with substantial evidence of a fair argument. Moreover, the issue is whether the Project conflicts with any plan or policy that has the purpose of reducing GHG emissions. The MND found the Project did not conflict with any such plans and further found it was consistent with a portion of the GGP.

Land Use Impacts:

Petitioner argues the MND’s land use analysis “is also fatally lacking.” (Opening Brief 15:5.) “[I]f substantial evidence supports a fair argument that the proposed project conflicts with [applicable land use plans] this constitutes grounds requiring an EIR.” (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 930 [emphasis added].)

Appendix G of the Guidelines sets forth the following thresholds of significance for land use impacts:

“Would the project:

1. Physically divide an established community?

2. Cause a significant environmental impact due to a conflict with any land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect?”

An agency’s “determination that a project is consistent with the city’s general plan carries a strong presumption of regularity.” (Clover Valley Found. v. City of Rocklin (2011) 197 Cal.App.4th 200, 238.) Further, an agency’s determination that a project is consistent with its land use plans will only be reversed when “a reasonable person could not have reached the same conclusion.” (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 243.) “A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a [project] must be ‘compatible with’ the objectives, policies, general land uses and programs specified in the general plan. [Citation.]” (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336.)

The MND’s brief land use analysis relies on consistency with the “Glendale Safe and Healthy Streets Plan” and “Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS).” (AR 94.) Petitioner argues the MND cannot rely on these plans, however, because there is no evidence the plans are “plans to eliminate ‘physical’ impacts. Guidelines § 15358.” (Opening Brief 15:10.) Petitioner also contends “the MND fatally fails to analyze the [Project’s] conflicts with local land use plans, such as the Glendale General Plan and its Elements, community/specific plans, or their impacts. Guidelines § 15130(d) (local plans).” (Opening Brief 15:10-12.)

Petitioner fails to identify and demonstrate with substantial evidence any specific land use plan (or provisions therein) with which the Project conflicts. Petitioner merely argues conflicts exist.

CEQA requires an environmental document to discuss plan inconsistencies. (Guidelines,

§ 15125, subd. (d); Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, 460.) CEQA does not require an agency to demonstrate plan consistency or explain why a proposed project does not create inconsistencies. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 632-633 [analysis not required when proposed project and plan are consistent].)

The MND finds consistency between land use plans and the Project. It is Petitioner’s burden to demonstrate with substantial evidence a fair argument the Project conflicts with applicable land use plans. Petitioner provides no such analysis.

Petitioner also challenges the MND’s analysis the Project would not “physically divide an established community.” (AR 94.) Petitioner argues the analysis is conclusory and “ignore[es] its reasonably foreseeable indirect impacts. [The Project] may – individually and cumulatively – physically divide the community by altering pedestrian circulation due to various changes and related projects. (E.g., AR 2608 [clipping sidewalks to accommodate bikes]; 2597-98 [reducing sidewalks from 14 to 10 feet]), 3265 [planting trees, further narrowing sidewalks], 2588-89 [drainage/flooding issues due to bulb-outs], 2642-43 [potential bike-riding on sidewalks], 2603 [COVID-19 concerns].)”

Again, Petitioner provides no substantial evidence to support its claim of physical division. Petitioner provides no explanation of how the Project, a long-term policy document to improve the pedestrian experience in the City, physically divides an established community. An argument that “by altering pedestrian circulation due to various changes and related projects” there will be a physical division in the City is not substantial evidence. (Opening Brief 15:18.)

Mandatory Findings of Significance:

Petitioner contends there is fair argument the Project will have significant impacts as specified in the mandatory thresholds set forth in Guidelines section 15065. Specifically, Petitioner argues “CEQA requires mandatory findings of significance and an EIR where, inter alia, the project (1) may ‘achieve short-term environmental goals to the disadvantage of long-term environmental goals’; (2) may have cumulative impacts along with other ‘past’, ‘current’ and ‘probable future’ projects; and (3) may have ‘adverse effects on human beings, either directly or indirectly.’ ” (Opening Brief 15:23-27 [citing Guidelines, § 15065, subds. (a)(2)-(4)].)

Petitioner essentially recasts its earlier arguments the court found unpersuasive.

Petitioner contends there is a fair argument the short-term environmental goal of encouraging pedestrian uses is to the disadvantage of the long-term environmental goal of decreasing traffic, air pollution and GHG impacts. (Opening Brief 16:1-3.) Petitioner argues, citing its attorney’s comment letter to the City (AR 3275), “Removing lanes and adding more congestion on the roads or spillover traffic on adjacent roads will result in long-term air pollution and GHG impacts.” (Opening Brief 16:4-5.) As noted earlier, Petitioner’s traffic impacts argument is speculative and not supported by substantial evidence.

Similarly, Petitioner argues the MND is silent as to Project’s cumulative traffic, air quality, GHG emissions, and land use impacts and instead provides a conclusory finding the Project’s impacts would not be cumulatively considerable. (AR 111.) Petitioner takes issue with the City’s conclusion the Project’s impacts would be individually limited and not cumulatively considerable because the pedestrian improvement projects occur within the public right-of-way to the existing public street network. (Opening Brief 16:7-11.) Petitioner does not provide substantial evidence of a fair argument otherwise. Petitioner’s claims of inadequate analysis are undeveloped in any specific way and merely supported by argument.

Finally, Petitioner’s allegation the City’s analysis concerning impacts on human beings is deficient does not meet Petitioner’s burden of demonstrating a fair argument there may be a substantial effect on the environment with substantial evidence. Petitioner repeatedly relies on its unsupported argument the Project may “expose people to more air pollution and GHG impacts,” and may result in “further delayed response times of public services (fire, police, ambulance) due to potential traffic congestion.” (Opening Brief 16:24-25 [citing AR 3274.) Argument alone is not substantial evidence of a fair argument.

1. Whether the Project’s MND Mitigate Measures were Legally Inadequate:

Petitioner argues the mitigation measures adopted in the MND (TRANS-1 and TRANS-2) are legally inadequate. As to future pedestrian projects impacting a traffic lane, Petitioner notes the mitigation measures require an analysis of VMT or LOS and where there is a significant impact leave up to the City (outside of the public view) whether to change the pedestrian project or “make findings, that significant beneficial pedestrian impacts and/or other beneficial impacts would reduce the adverse VMT or as applicable, LOS/intersection operation impact to a less-than significant level.” (AR 31.) Petitioner suggests TRANS-1 and TRANS-2 are illusory as they allow the City to issue a statement of overriding considerations in lieu of reducing environmental impacts. TRANS-1 and TRANS-2 therefore, according to Petitioner, do not commit the City to mitigation.

Contrary to Petitioner’s assertion, the mitigation measures are not merely a placeholder for a statement of overriding considerations. Where a proposed project exceeds the identified threshold of significance (an identified performance standard), the “project shall be modified to lessen the impact of the pedestrian improvements” to below the City’s relevant thresholds, or the City must determine that the Project impacts would essentially offset or reduce the adverse LOS/intersection operation of VMT threshold impact to a less-than significant level.[8]

Petitioner also argues the mitigation measures violate Guidelines section 15025, subdivision (b)(2). Guidelines section 15025 prohibits “[t]he decisionmaking body of a public agency” from delegating to agency staff the authority to certify an EIR, to make certain requisite findings, and to give final approval to a project. [The court has requested more explanation during argument on this issue.]

Petitioner suggests the mitigation measures delegate findings for a statement of overriding consideration to other than decision makers as required by the Guidelines. Petitioner’s argument relies on its conclusion the mitigation measure is surreptitious measure allowing the City to adopt a statement of overriding considerations with ease. Petitioner misinterprets the mitigation measures. The mitigation measures require a finding of less-than-significant impact either through project modification or an assessment of beneficial and adverse impacts. (AR 103.)

The City shall address Petitioner’s post hoc rationalization argument based on Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at 307. [“A study conducted after approval of a project will inevitably have a diminished influence on decisionmaking. Even if the study is subject to administrative approval, it is analogous to the sort of post hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA.”])

At the same time, Petitioner argues the mitigation measure allow for piecemealing go the Project by allowing future approvals of “pedestrian projects.” The City notes the Project is plan level with a 25-year implementation timeline. A program-level MND does not result in impermissible segmentation.[9]

1. Whether the City Improperly Deferred Mitigation:

Petitioner argues TRANS-1 and TRANS-2, “[b]eyond being illusory,” operate to improperly defer mitigation in violation of CEQA. (Opening Brief 19:5-6.) Petitioner contends the City has not shown the infeasibility or impracticality of prescribing required mitigation measures.

Generally, CEQA does not permit the deferral of mitigation. (Guidelines, § 15126.4, subd. (a)(1)(B) [“Formulation of mitigation measures should not be deferred until some future

time.”]) “However, this general rule against deferring the formulation of mitigation measures is not absolute. Courts have recognized that ‘there are circumstances in which some aspects of mitigation may appropriately be deferred.’ ” (POET, LLC v. State Air Resources Bd. [POET, LLC] (2013) 218 Cal.App.4th 681, 735; Sacramento Old City Ass’n v. City Council (1991) 229 Cal.App.3d 1011.) As articulated in POET, LLC:

“the formulation of mitigation measures is properly deferred when three elements are satisfied. First, practical considerations prevented the formulation of mitigations measures at the usual time in the planning process. Second, the agency committed itself to formulating the mitigation measures in the future. Third, the agency adopted specific performance criteria that the mitigation measures were required to satisfy.” (Id. at 736.)

Here, the City contends the mitigation measures have clear and enforceable performance standards for future improvements. That is, as discussed earlier, the mitigation measures include performance measures (the City’s thresholds of significance) and require either physical redesign or an off-setting beneficial impact. The court agrees. TRANS-1 and TRANS-2 require that environmental impacts be reduced to less than significant. [This does not resolve, however, the court’s questions regarding the beneficial offset analysis.]

Further, the court finds substantial evidence in the record supports the City’s determination that to the extent mitigation is deferred, it was appropriate. In particular, the Project is a program-level plan which provides recommendations for planned improvements spanning a 25 year-period. (AR 1679-1689.) The City reports many final design plans for numerous potential improvements have yet to be formulated; thus, as a practical matter, the City argues it would be infeasible to implement specific project-level mitigation for all future proposed pedestrian projects under these circumstances.

1. Whether the City Violated the Vehicle Code:

    

Petitioner contends the Project violates the Vehicle Code. Specifically, Petitioner argues the Project involves the permanent, partial closure of city streets. Therefore, according to Petitioner the City was required to comply with Vehicle Code section 21101. Petitioner asserts the City failed to comply with Vehicle Code section 21101 by failing to make the findings required for a street closure. (AR 6-9.)

As a preliminary matter, the court acknowledges the State has preempted the field of motor vehicle traffic regulation. (Veh. Code, § 21; Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 548, 549-550.) As such, a city has no authority over vehicular traffic control except as expressly provided by the Legislature. (Rumford v. City of Berkeley, supra, 31 Cal.3d at 550; City of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, 1106-1107.) 

Vehicle Code section 21101 provides in part: “Local authorities may adopt rules and regulations by ordinance or resolution on the following matters: (a) Closing any highway to vehicular traffic when in the opinion of the legislative body having jurisdiction the highway is . . . (1) No longer needed for vehicular traffic.”

The City argues Petitioner has misinterpreted and misapplied Vehicle Code section 21101. The court agrees; subdivision (a) of Vehicle Code section 21101 does not apply to the Project.

First, as argued by the City, Vehicle Code section 21101, subdivision (a) only applies to complete, permanent street closures. (Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1179. [“Vehicle Code section 21101, subdivision (a)(1) grants authority only for a complete closure of a street to all vehicular traffic.”]) There is no evidence the Project involves a complete and permanent closure of any street in the City.

While subdivision (a)(1) of Vehicle Code section 21101 may not apply to the Project, subdivision (f) does. As noted by Petitioner, Vehicle Code section 21101, subdivision (f) allows partial barriers to divert traffic. According to Petitioner, the City could partially divert traffic where the “entry to, or exit from, or both, from any street by means of islands, curbs, traffic barriers, or other roadway design features” were intended “to implement the circulation element of a general plan adopted. . . .” (Opening Brief 21:15-18.) Petitioner argues the City made no such showing the barriers resulted from implementation of the circulation element of the City’s General Plan. (Opening Brief 21:18 [citing AR 6-9].)

The court disagrees about the City’s showing.[10] The MND states:  

“The improvements and programs included in the Plan are consistent with both the Health and Safe Streets Plan (April 2011) and the Bicycle Transportation Plan (August 2012) as well as the Complete Streets Plan that was added to Circulation Element in 2011, in that the Plan furthers polices that include multimodal transportation by enhancing the pedestrian environment as detailed in Table 1 of the project description and Figures 1-22. Implementation of the improvements identified in the Plan will be subject to the Mitigation Measures TRANS-1 and TRANS-2 identified below.” (AR 102; see also 1335.)

Petitioner has not demonstrated the City’s Project was inconsistent with the Circulation Element of its General Plan.

CONCLUSION

Based on the foregoing, the petition is denied.

IT IS SO ORDERED.

January 18, 2023                                                                    ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court