Judge: Mitchell L. Beckloff, Case: 23STCP00670, Date: 2024-03-13 Tentative Ruling

Case Number: 23STCP00670    Hearing Date: March 13, 2024    Dept: 86

CITIZENS FOR A BETTER LOS ANGELES v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY

Case Number: 23STCP00670

Hearing Date: March 13, 2024 

[Tentative]       ORDER DENYING PETITION FOR WRIT OF MANDATE  

Petitioners, Citizens for a Better Los Angeles and Coalition for a Scenic Los Angeles, seek a writ of administrative mandate directing Respondent, Los Angeles County Metropolitan Transportation Authority (Metro), to set aside its certification of an environmental impact report (EIR) for, and all other approvals of, the Transportation Communication Network (TCN) program (the TCN Program or the Project). Metro and Real Party in Interest, All Vision, LLC, (collectively, Respondents) jointly oppose the petition. 

Petitioners challenge to the Project is based on the California Environmental Quality Act (CEQA), Public Resources Code 21000 et seq.[1]

Petitioner’s unopposed Request for Judicial Notice (Pet. RJN) of Exhibits A through C is granted.  Respondents’ unopposed Request for Judicial Notice (Resp. RJN) of Exhibits A through D is granted. The court judicially notices the existence of these official records but not any asserted interpretations of them. 

The petition is denied.

BACKGROUND AND PROCEDURAL HISTORY

The Project

“[T]he Transportation Communication Network (TCN) Program (Project or TCN Program) . . . would provide a network of structures with digital displays (TCN Structures) that would incorporate intelligent technology components to promote roadway efficiency, improve public safety, augment Metro’s communication capacity, provide for outdoor advertising where revenues would fund new and expanded transportation programs . . ., and result in an overall reduction in static signage displays throughout the City of Los Angeles (City). Implementation of the Project would include the installation of up to 34 Freeway-Facing TCN Structures and 22 Non-Freeway Facing TCN Structures all on Metro-owned property. The total maximum amount of digital signage associated with the TCN Structures would be up to approximately 55,000 square feet. As part of TCN Program, a take-down component would be implemented including the removal of at least 110,000 square feet (2 to 1 square footage take-down ratio) of existing off-premise static displays. Signage to be removed would include, at a minimum approximately 200 off-premise static displays located within the City of Los Angeles.” (AR 135 [project summary from Draft EIR].) 

“As part of the Project, the City must amend the City’s sign regulations in Chapter I of the Los Angeles Municipal Code (the Zoning Code) to create a mechanism to review and approve the TCN Structures (Zoning Ordinance) and associated static display take-down program. The Zoning Ordinance regulations would generally affect the location, design, operations, take-down program and community benefits of the TCN Structures.” (AR 135.) 

“The site locations for the TCN Structures (Site Locations) are located within property owned and operated by Metro along freeways and major streets, within the City. A portion of the Site Locations contain existing static displays. The majority of the Site Locations are located on vacant land with limited vegetation and are generally inaccessible to the public. Further, the proposed Site Locations are used primarily for Metro operations which include rail corridors, stations, parking, bus depots, and equipment lots. . . . No Site Locations are zoned for residential use.” (AR 136.) 

Among others, Metro made the following findings when it approved the Project and the Final EIR:

The TCN Structures would increase roadway efficiency by aiding traffic signal timing, microtransit data, and Metro vanpool on-demand services. It would also improve the experience of bus passengers by facilitating transit signal priority, boosting bus wi-fi, and relaying accurate bus arrival time information. Finally, the TCN Program would enable data collection during large events in the City, to minimize congestion and provide parking information. (AR 19 [Metro’s Findings of Fact for CEQA approval].) 

“The TCN Program would create advertising revenue that would be utilized by both Metro and the City to fund new and expanded transportation programs. The TCN Structures would follow Metro’s Advertising Content Guidelines. Off-site advertising would include information related to a business, commodity, industry or other activity which is sold, offered or conducted elsewhere than on the premises upon which the TCN Structure is located.” (AR 19.)

Environmental Review and Approval of the Project

Metro released the Draft EIR for the Project in September 2022. (AR 93-2197.) In November 2022, after receiving comments from multiple persons and entities, including Petitioners, Metro published its Final EIR and responses to comments. (AR 2198-3463.) Both the Draft EIR and Final EIR concluded the Project would have significant and unavoidable impacts on

(i) scenic vistas; (ii) applicable plans and other regulations governing scenic quality/visual character; (iii) historical resources; and (iv) land use and planning. (AR 112-115.)

On January 26, 2023, Metro’s Board of Directors voted to certify the Final EIR and adopt environmental findings. The board found implementation of the TCN Program “would result in significant unavoidable impacts related to aesthetics, cultural resources, and land use and planning, and no feasible mitigation measures were identified to mitigate these impacts,” but the “overall benefits of the Project outweigh the significant and unavoidable impacts.” The board adopted a Mitigation Monitoring and Reporting Program (MMRP) and approved the TCN Project. (AR 17, 89-92, 4559.) In response to public comments, Metro eliminated TCN Structures FF-29, NFF-14, and NFF-15 when it approved the Project. (AR 19.)

After Metro’s approval, the City continued its process of preparing the Zoning Ordinance, and then engaged in a public review process. The draft Zoning Ordinance proposed to remove several TCN Structures from the Project. The City prepared an Addendum for these changes, which concluded that the elimination of several TCN Structures would further reduce the Project’s impacts compared to the version studied in the Final EIR and, as a result, “the proposed modifications and clarifications do not meet the requirements for preparation of a subsequent or supplemental EIR . . . .” (Resp. RJN and Wright Decl. Exh. A at 36.) The City approved the Zoning Ordinance for the Project on December 26, 2023. (Id., Exh. B at 42, Exh. C at 49 and Exh. D at 76.)

STANDARD OF REVIEW

In an action challenging an agency’s decision under CEQA, the trial court reviews the agency’s decision for a prejudicial abuse of discretion. (§ 21168.5.) “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.” (Ibid.; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 [Vineyard].) 

Challenges to an agency’s failure to proceed in a manner required by CEQA are subject to a less deferential standard than challenges to an agency’s factual conclusions. (Vineyard, supra, 40 Cal.4th at 435.) When reviewing procedural claims, the court must “determine de novo whether the agency has employed the correct procedures.” (Ibid.; see Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26.) 

“Substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. . . . Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (§ 21080, subd. (e).) Under the substantial evidence test and the agency’s factual conclusions, the court reviews “the administrative record to see if it contains evidence of ponderable legal significance that is reasonable in nature, credible, and of solid value, to support the agency's decision.” (Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, 960.) 

“The EIR is presumed legally adequate . . . and the agency's certification of the EIR is presumed correct. . . . Persons challenging the EIR therefore bear the burden of proving it is legally inadequate and that the agency abused its discretion in certifying it.” (Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 327-328.) A reviewing court “will not act as counsel for either party to [a challenge of an agency decision] and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742 [in context of appeal]; see also Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14. [“We are not required to search the record to ascertain whether it contains support for [the parties’] contentions.”]) 

Finally, when an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [its] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) A petitioner “must lay out the evidence favorable to the other side and show why it is lacking.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) 

ANALYSIS 

Respondents’ Mootness Defense

Before reaching the merits, the court first considers Respondents’ contention “[s]everal of Petitioners’ arguments are based on specific TCN Structures that are no longer part of the Project” and that such claims are therefore moot. (Opposition 30:11-12.) 

“California courts will decide only justiciable controversies. [Citations.] The concept of justiciability is a tenet of common law jurisprudence and embodies ‘[t]he principle that courts will not entertain an action which is not founded on an actual controversy. . . .’ ” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) “A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was

initiated.’ ” (Id. at 1574.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Ibid.)

The final version of the Project approved by both Metro and the City eliminated TCN Structures FF-4, FF-13, FF-14, FF-29, FF-30, NFF-1, NFF-2, NFF-3, NFF-7, NFF-12, NFF-14, NFF-15, NFF-16, NFF-20, and NFF-21. (See Resp. RJN Exh. D at 21-23.)[2]

Respondents argue the project design feature AES-PDF-1 only applies to TCN Structures FF-13 (eliminated), FF-14 (eliminated), FF-25, FF-29 (eliminated), and FF-30 (eliminated); the only remaining TCN Structure affected by AES-PDF-1 is FF-25; and Petitioners do not reference or analyze TCN Structure FF-25 in their arguments about AES-PDF-1. Respondents contend Petitioners’ claim of inconsistency with Mobility Plan 2035 only pertains to TCN Structures NFF-7 and NFF-12, both of which have been eliminated from the Project. Finally, Respondents report the “final version of the Project approved by both Metro and the City eliminates all of the TCN Structures proposed to be removed in Alternatives 2 and 3.” (Opposition 31:10-12.)

Petitioners effectively respond to Respondents’ mootness claim. “[T]here is no evidence indicating the EIR at issue in this case has been decertified and can no longer be relied upon for the current version or future versions of” the TCN Program. (Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 17 Cal.App.5th 413, 423.) The City Council could reverse course and approve TCN Structures that had been eliminated from the Project. The EIR remains a valid environmental clearance document and could plausibly authorize the City to approve currently removed TCN Structures in the future without further environmental review. (§ 21166.) Accordingly, the petition is “not moot because rescission of Project approvals is incomplete.” (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 759.) [3]

Did The Final EIR Analyze the Whole of the Project and Include an Adequate Project Description?

Petitioners contend Metro’s “preparation of a separate EIR for the TCN in the City improperly segments the environmental approval of Metro’s overarching program installing digital billboards within jurisdictions Countywide.” (Opening Brief 10:25-27 [emphasis added].)

              Legal Standard for Determining the Scope of the Project under CEQA

“Project” is defined under CEQA as an “activity which may cause either a direct physical

change in the environment, or a reasonably foreseeable indirect physical change in the environment. . . .” (§ 21065; see also Guidelines[4] § 15378.) “Activity” includes “[a]n activity directly undertaken by any public agency.” (§ 21065, subd. (a).) 

“‘Project’ is given a broad interpretation . . . to maximize protection of the environment.’ [Citation.] ‘Project’ refers to ‘the whole of an action . . . .” (Riverwatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1203.) “This broad interpretation ensures CEQA's requirements are not avoided by chopping a proposed activity into bite-sized pieces which, when taken individually, may have no significant adverse effect on the environment.” (POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 73.) 

“[A]n EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396.) Where two activities are “part of a coordinated endeavor” they may constitute a single project. (County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, 385.)

Relatedly, “CEQA forbids ‘piecemeal’ review of the significant environmental impacts of a project.” (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1222.) “[T]here may be improper piecemealing when the purpose of the reviewed project is to be the first step toward future development. . . . And there may be improper piecemealing when the reviewed project legally compels or practically presumes completion of another action. . . . On the other hand, two projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects have different proponents, serve different purposes, or can be implemented independently.” (Id. at 1223.) 

“Some courts have concluded a proposed project is part of a larger project for CEQA purposes if the proposed project is a crucial functional element of the larger project such that, without it, the larger project could not proceed.” (Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 99.) Some courts have also considered whether two actions are “related in (1) time, (2) physical location and (3) the entity undertaking the action.”  (POET, LLC v. State Air Resources Bd., supra, 12 Cal.App.5th at 73 [quoting Tuolomne County Citizens for Respondent Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1227 (Tuolomne)].)[5]

Whether several actions constitute a single project is a question of law. (Tuolomne, supra, 155 Cal.App.4th at 1224.)

              Application Here

As described in the Draft EIR, the TCN Program “would provide a network of structures with digital displays (TCN Structures) . . . [and reduce] static signage displays throughout the City of Los Angeles (City).” (AR 135.) “The site locations for the TCN Structures (Site Locations) are located within property owned and operated by Metro along freeways and major streets, within the City.” (AR 136.)

Petitioners contend the TCN Program is “one of many components of Metro’s digital sign and advertising program – originally known as the Billboard Removal and Relocation Program” and “is set forth in Metro’s 2013 Strategic Plan for Billboard Advertising on Metro Property.” (Opening Brief 7:1-10.) On that basis, Petitioners contend the geographic limitation to the City of Los Angeles in the EIR is misleading and “makes it impossible for the public to understand the overall scope of environmental impacts from its Billboard Program.” (Opening Brief 13:19-20.)

As evidentiary support, Petitioners rely primarily on an August 2016 report to the Executive Management Committee of Metro’s board (Board Report), which recommended the board authorize Metro’s chief executive officer to “AMEND the existing revenue services contract with All Vision LLC by entering into a Second Amended and Restated Contract to clarify the terms of such contract and provide Metro with an additional option to develop new digital billboard signs on Metro property.” (AR 6932; see also AR 3578.)  

The Board Report provided the following summary of Metro’s Billboard Program:

All Vision has completed a comprehensive review of existing billboards on Metro property. This review included an in-depth analysis of all Metro-owned property and its potential for generating additional revenue from billboard assets. As part of this review and analysis, All Vision (1) reviewed each existing billboard site; (2) investigated local and state ordinances related to billboards; (3) conducted meetings with local municipalities and Metro staff; and (4) prepared a Strategic Plan (“Strategic Plan”) for Billboard Advertising on Metro Property.

The Strategic Plan, which was approved by the Board on May 23, 2013, offers Metro the opportunity to permit new digital billboards on its property that will provide the potential for significant increases in long-term revenue. All potential development sites have been reviewed for conformance with federal and state laws, valued for highest and best outdoor advertising revenue opportunity to Metro, and selected for consideration after an initial CEQA assessment and input from the Metro real estate, planning, operations and engineering departments. Proposed locations have been organized into projects by local jurisdiction. All Vision, Metro staff, and, if applicable, the billboard companies, will work with each local jurisdiction that has a Metro project opportunity to obtain the necessary entitlements.

Currently there are 263 outdoor advertising billboards structures (“Billboards”) in place on Metro property and rights-of-way in the County of Los Angeles.   (AR 6936.) 

The Board Report states Metro installed a digital billboard in Downey in January 2015, removed multiple static billboards in Long Beach in 2016, and installed a digital billboard in Long Beach in 2016. (AR 6937.) As of August 2016, Metro anticipated it would install a digital billboard in Carson in the fourth quarter of 2016. (AR 6937.)[6] A “Santa Clarita billboard project was never developed due to local opposition.” (AR 6937.) As of August 2016, Metro and All Vision had not yet discussed a development agreement with Inglewood officials to install a digital billboard in that city. (AR 6937.) As to the City of Los Angeles, the Board Report states: “All Vision and Metro staff have had preliminary discussions with the City of Los Angeles. The City is considering various options for the adoption of a new billboard ordinance. The City of Los Angeles Project offers Metro the greatest potential for new revenue from the conversion of static billboards to digital billboards.” (AR 6937.)  The Board Report also states: “All Vision, Metro, and, if appropriate, the billboard companies will work with each local jurisdiction that has a Metro project opportunity to determine if the municipality is interested in opting into the program. (AR 6937.) 

Petitioners do not demonstrate the Downey, Long Beach, and/or Carson digital billboards are part of the same “project” as the TCN Program. While those three digital billboards were installed by the same agency (Metro) pursuing the TCN Program, Petitioners’ record citations do not disclose any close connection in physical location between those digital billboards and the TCN Program. (See Opening Brief 11:24-28 [acknowledging the billboards “travers[e] multiple cities” and not citing the “absolute distances” between the billboards].)

Petitioners’ record citations also do not show a close connection in time between the Downey, Long Beach, and/or Carson digital billboards and the TCN Program. Metro released the Draft EIR for the TCN Program Project in September 2022, about six years after Metro installed the Downey, Long Beach, and/or Carson billboards. (AR 93-2197.) Metro developed the Downey, Long Beach, and Carson digital billboards independently of each other and the TCN Program, based on individualized meetings between Metro and those local municipalities. (See AR 6936-6937.) Because those three billboards could be, and in fact were, “implemented independently” of the TCN Program, they are not part of the same “project” within the meaning of CEQA.  (Banning Ranch Conservancy v. City of Newport Beach, supra, 211 Cal.App.4th at 1222.)  The evidence cited by Petitioners also does not show the Downey, Long Beach, and/or Carson digital billboards were a “crucial functional element” of the TCN Program or that the TCN Program “could not proceed” without the developments of those three billboards in different municipalities. (Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 99 [CBE].)[7] 

Petitioners also argue the TCN Program is a component of Metro’s Billboard Program; Metro has already studied other “potential development sites” where digital billboards could be installed; and the project description in the EIR should have included “reasonably foreseeable future digital billboard developments which are part of Metro’s Billboard Program.” (Opening Brief 13:23-24.) Respondents assert future digital billboard developments discussed in the Board Report are not a reasonably foreseeable consequence of the TCN Program. (Opposition 12:3-19 and 13:5-26.) Respondents’ position is not entirely clear from its Opposition.

Petitioners have not cited any evidence it is reasonably foreseeable that any other specific digital billboards, such as those discussed for Inglewood or Santa Clarita (see AR 6937), will be installed outside the City of Los Angeles as a result of the TCN Program. Because the Billboard Program requires individualized discussions with each local jurisdiction, as well as CEQA review for each digital billboard that is installed (see AR 6936), the approval of the Project does not “compel[] or practically presume[] completion of” any future digital billboards in other jurisdictions. (See Banning Ranch Conservancy v. City of Newport Beach, supra, 211 Cal.App.4th at 1222.) 

CBE, supra, 184 Cal.App.4th 70 is instructive. In CBE, an agency prepared an EIR for upgrades to an oil refinery facility which included a hydrogen plant replacement. The agency did not include the facility’s proposed hydrogen pipeline in the project description. (Id. at 96-98.) The proposed hydrogen pipeline would transport excess hydrogen from the oil refinery facility to other hydrogen consumers. (Ibid.) The Court of Appeal noted there was no dispute that the two projects were “being environmentally reviewed under CEQA,” albeit separately. (Id. at 97.) The Court concluded the agency did not engage in piecemeal review reasoning:

The Project at issue here and the hydrogen pipeline project, are not interdependent. In fact, they perform entirely different, unrelated functions. The principal purpose for the Project is to allow Chevron to modify and/or replace existing Refinery equipment in order to “improve the Refinery's ability to process crude oil and other feed stocks from around the world and to direct more of current gasoline production capacity to the California market.” The principal purpose of the hydrogen pipeline project is to provide a way for Praxair to transport excess hydrogen that is not required for Chevron's operations to other hydrogen consumers in the Bay Area. Because Chevron's efforts to process a larger percentage of California fuel at the Refinery does not “depend on” construction of the hydrogen pipeline, the City's treatment of the hydrogen pipeline as a separate project does not constitute illegal “piecemealing.” (Id. at 101-102.)

Similarly here, the Project and the other signs, including possible future signs, are not “interdependent.” “[E]ach sign or proposed project considered beyond the TCN Project would be subject to its CEQA review, and would be developed in coordination with the local jurisdiction.” (AR 7027.) Whether the TCN Program is approved, it would be speculative to conclude other signs will be developed in other jurisdictions. (Ibid.) Accordingly, Metro did not engage in improper piecemealing when it separated environmental review of the TCN Program from other signs that might or could possibly be developed in the future under Metro’s Billboard Program.

The court also is not persuaded improper segmentation or piecemealing occurred simply because the TCN Program is part of Metro’s Billboard Program. As discussed, the Billboard Program is structured such that individualized determinations are made by Metro, All Vision, and the local jurisdiction about the development of digital billboards in each local jurisdiction, and CEQA review is performed for each proposed digital sign project. (See AR 6932-6937.) The Billboard Program would exist regardless of whether the TCN Program or other digital billboards are developed. Accordingly, the TCN Program is not a “crucial element” of a larger project and environmental review may be separated. 

Based on the foregoing, Petitioners do not show Metro prejudicially abused its discretion with its Project description. 

Does the Project Description Improperly Incorporate Mitigation Measures? 

Petitioners contend “the EIR incorporates heightened light pollution standards for digital billboards adjacent to the proposed Bowtie State Park and the Ballona Wetlands Ecological Reserve.” (Opening Brief 16:19-20.) Specifically, Petitioners refer to a project design feature, AES-PDF-1, added in response to public comment after Metro published the Draft EIR. AES-PDF-1 provides:

State of the art louvers or other equivalent design features shall be incorporated into the design of TCN Structures FF-13, FF-14, FF-25, FF-29, and FF-30 such that the light trespass illuminance at sensitive habitat at the proposed Bowtie State Park, at the mapped biological resources in the vicinity of TCN Structure FF-25, and at the Ballona Wildlife Reserve to the south of the Marina Freeway, west of Culver Boulevard, do not exceed 0.02 footcandles. (AR 2566.)

Petitioners contend Metro prejudicially abused its discretion under CEQA by including AES-PDF-1 as a project design feature rather than as a mitigation measure.

CEQA requires an EIR include a detailed statement setting forth “[a]ll significant environmental effects on the environment of the proposed project” and “[m]itigation measures proposed to minimize significant effects on the environment.” (§ 21100, subd. (b).) “A public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures.” (§ 21081.6, subd. (b).) 

“For each significant effect, the EIR must identify specific mitigation measures; where several potential mitigation measures are available, each should be discussed separately, and the reasons for choosing one over the others should be stated.” (Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, 653.) “Thus, when a project is approved that will significantly affect the environment, CEQA places the burden on the approving agency to affirmatively show that it has considered the identified means of lessening or avoiding the project’s significant effects and to explain its decision allowing those adverse changes to occur.”  (Id. at 654.) An EIR that “compress[es] the analysis of impacts and mitigation measures into a single issue . . . disregards the requirements of CEQA.” (Id. at 656.) However, “[t]he distinction between elements of a project and measures designed to mitigate impacts of the project may not always be clear.” (Id. at 656, fn. 8.) 

A mischaracterization of a mitigation measure as a project design feature “is significant, however, only if it precludes or obfuscates required disclosure of the project's environmental impacts and analysis of potential mitigation measures.” (Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th at 160, 185.) 

Here, the context in which AES-PDF-1 was added as a project design feature is relevant to Petitioners’ claim that Metro prejudicially abused its discretion.  The Project description in the EIR states that louvers and other design features would be used for all digital billboards to minimize “light spillage”:

The digital display faces of the TCN Structures would use light emitting diodes (LED) lighting with a daytime maximum up to 6,000 maximum candelas and 300 maximum candelas at nighttime, depending on the Site Location. Louvers would be installed to shade the LED lights from creating unintentional light spillage, assist in reducing reflection, and in turn would create a sharper image. (AR 141.)

Significantly, the Draft EIR determined “project-level impacts related to light and glare were determined to be less than significant without mitigation.” (AR 229.) As a threshold of significance, the Draft EIR relied on light trespass regulations in the Los Angeles Municipal Code (LAMC), which generally limit light trespass illuminance at night to 3.0 foot candles (fc). (AR 209-210, 212-213, 1007.) The Draft EIR then evaluated three prototype sign sizes “in comparison to a conservative maximum distance where light trespass from the display would be less than 0.3 fc or 10 percent of the 3.0 fc maximum light trespass permitted by the LAMC.”  (AR 212.) 

The Draft EIR also found lighting impacts on biological resources resulting from the operation of the TCN Structures would be less than significant, in part due to their orientation and the use of louvers. (AR 323 [“impacts to bats during operations of the TCN Structures would be less than significant,” due in part to the limited light emissions and inclusion of louvers “to shade the LED lights from creating unintentional light spillage”], 1345-1346.)

The analyses of lighting-related impacts in the Draft EIR were supported by a Lighting Study prepared by lighting experts Francis Krahe & Associates. (See AR 989-1133.) As summarized in the Draft EIR, “[t]he Lighting Study performed detailed site surveys evaluating all 56 proposed TCN Structures and surrounding properties located at a distance near enough to the Site Locations to potentially receive significant light trespass or glare from the digital displays. Further, the Lighting Study conducted detailed modeling at sensitive use property locations where there may have been a potential for light trespass and or glare.” (AR 211; see AR 1010, 1039-1043.)

In response to public comments about light trespass on the proposed Bowtie State Park and the existing Ballona Wetlands Ecological Reserve (see AR 981, 2908-2977, 2647), Metro added AES-PDF-1 as a project design feature. Metro also obtained a Supplemental Lighting Study from Francis Krahe & Associates, which provided further analysis of the light trespass illuminance associated with TCN Structures FF-13, FF-14, FF-25, FF-29, and FF-30. (See AR 3429-3437; see also AR 2227-2229.) 

Petitioners contend AES-PDF-1 “directly mandates reductions in light trespass at biologically sensitive resources rather than requiring incorporation of a defined physical component, such as louvers of a certain length or model type.” (Opening Brief 17:11-13.) Significantly, however, the Project description in the EIR already included louvers as a design feature for all digital billboards to minimize “light spillage.” (AR 141.) Petitioners do not argue the louvers required for all digital billboards should have been incorporated as mitigation measures. While AES-PDF-1 requires the louvers to meet certain performance standards for TCN Structures FF-13, FF-14, FF-25, FF-29, and FF-30, they are reasonably viewed as an integral part of the Project with respect to those five TCN Structures. Petitioners cite no authority suggesting that the project design need be the same for all TCN Structures. 

Petitioners’ reliance on Lotus v. Department of Transportation, supra, 223 Cal.App.4th at 214 is misplaced:

In Lotus, [the Court of Appeal] concluded that the mischaracterization of mitigation measures as part of the project compounded a significant omission in the EIR: the failure to apply a standard of significance to impacts on the root systems of old growth redwood trees. (Lotus, supra, 223 Cal.App.4th at pp. 654-655, . . . .) [The Court] explained, ‘Absent a determination regarding the significance of the impacts to the root systems of the old growth redwood trees, it is impossible to determine whether mitigation measures are required or to evaluate whether other more effective measures than those proposed should be considered. . . . Simply stating that there will be no significant impacts because the project incorporates ‘special construction techniques’ is not adequate or permissible.’ ”(Mission Bay Alliance v. Office of Community Investment & Infrastructure, supra, 6 Cal.App.5th at 185.)

Here, in contrast to Lotus v. Department of Transportation, Metro made a determination of whether lighting impacts from the Project would be significant. The Draft EIR determined “project-level impacts related to light and glare were determined to be less than significant without mitigation.” (AR 229.) As a threshold of significance, the Draft EIR relied on light trespass regulations in the LAMC. (AR 209-210, 213, 1007.) The Draft EIR also found that lighting impacts on biological resources resulting from the operation of the TCN Structures would be less than significant, in part due to their orientation and the use of louvers. (AR 323.)  Petitioners have not developed a persuasive argument Metro abused its discretion in selecting the 3.0 fc significance standard from the LAMC. Nor do Petitioners persuasively address the finding—from the Draft EIR—that lighting impacts on biological resources resulting from the operation of the TCN Structures would be less than significant.[8] Thus, as Respondents argue, “Metro’s addition of AES-PDF-1 provides an extra level of assurance that the actual light levels from the signs will not be higher than those analyzed in the EIR.” (Opposition 17:27-28.)

Mission Bay Alliance v. Office of Community Investment & Infrastructure, supra, 6 Cal.App.5th at 185 is instructive. In Mission Bay v. Office of Community Investment & Infrastructure, the Court of Appeal considered the inclusion of San Francisco’s special events transit service plan, the “Muni TSP,” as a component of a basketball arena and events center project, rather than as a mitigation measure. The Court distinguished Lotus v. Department of Transportation and found no prejudicial abuse of discretion:

[C]haracterization of the Muni TSP as part of the project and not as a mitigation measure did not, as plaintiffs suggest, interfere with the identification of the transportation consequences of the project or the analysis of measures to mitigate those consequences. Unlike the situation in Lotus, the environmental impacts of the project on vehicle traffic and transit are fully disclosed in the FSEIR. The FSEIR includes analysis both with and without implementation of the Muni TSP and applies the same threshold standards to determine the significance of those impacts. By comparing the significance of the impact on local transit with and without the TSP, a reader learns that while implementation of the TSP will reduce impacts on Muni travel to a less than significant level, the impact without the TSP remains significant and unavoidable, even with alternative mitigation measures. (Mission Bay Alliance v. Office of Community Investment & Infrastructure, supra, 6 Cal.App.5th at 185.) 

Similarly here, Metro analyzed the lighting impacts of the Project with and without inclusion of AES-PDF-1 and determined that there would be no significant environmental impacts under its chosen threshold of significance. Metro then analyzed the Project impacts when AES-PDF-1 was included and determined that the light levels of TCN Structures FF-13, FF-14, FF-25, FF-29, and FF-30 would not cause a significant environmental impact, even if a more stringent level of significance was used. Because a member of the public can determine the significance of the lighting impacts before and after AES-PDF-1, Metro did not prejudicially abuse its discretion in analyzing AES-PDF-1 as a project design feature.

Petitioners also assert “the characterization of AES-PDF-1 as a [project design feature] precludes enforcement after construction because it is by definition enforceable only during pre-construction and construction.” (Opening Brief 18:20-21.) Petitioners cite the MMRP, which states Metro is the enforcement agency for AES-PDF-1 and the “monitoring phase” is “preconstruction; construction.” (AR 2556.) Petitioners do not cite any language from the MMRP, or any CEQA statute or regulation, supporting Petitioners’ contention the enforceability of a project commitment is limited to the monitoring period stated in the MMRP. That Metro incorporated AES-PDF-1 into the Project’s design features and the MMRP suggests Metro intended AES-PDF-1 as a condition of approval. (See AR 4240-4241.) Petitioners fail to show Metro would lack the authority to enforce AES-PDF-1 as a condition of approval.

Petitioners also assert there is no substantial evidence the louvers or other equivalent features “exist or could achieve such radical reductions in light trespass compared to standard louvers.” (Opening Brief 19:2-8.) However, the Supplemental Lighting Study calculated that light trespass levels at the edge of the mapped Ballona Wetlands area would be 0.02 fc, and light levels would be even less at the proposed Bowtie State Park. (AR 3432, 3435.) Based on the Supplemental Lighting Study, the Final EIR concluded “[t]his maximum light trespass of 0.02 fc is well below the most stringent recommendation of 0.09 fc for the LZI Zone for ‘Special Districts and Government Designated Parks’ within the California Administrative Code.” (AR 2229.) Metro also included in the Final EIR a Biological Resources Supplemental Analysis, which provided additional analysis of the impacts of lighting from the digital billboards on biological resources.  (AR 3440.) While Petitioners criticize the supplemental expert analysis, Petitioners do not cite expert opinions refuting them. The supplemental lighting studies are substantial evidence upon which Metro could reasonably rely in analyzing the effectiveness of AES-PDF-1.

Based on the foregoing, Petitioners do not show Metro prejudicially abused its discretion by including AES-PDF-1 as a project design feature or in analyzing the significance of any of the Project’s lighting-related impacts, including on biological resources. 

Is the EIR’s Conclusion Transportation Impacts Will be Less Than Significant Supported by Substantial Evidence? 

Petitioners contend substantial evidence does not support the EIR’s finding the Project will have less-than-significant impacts on transportation safety. Specifically, Petitioners criticize three driving safety studies Metro relied upon, in part, to conclude that “it is not anticipated that the Project would lead to a significant safety risk on adjacent roadways.” (AR 722.)

Under the substantial evidence test, the court reviews “the administrative record to see if it contains evidence of ponderable legal significance that is reasonable in nature, credible, and of solid value, to support the agency's decision.” (Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, 960.) The court “do[es] not weigh conflicting evidence, as that is the role of the public agency.” (Ibid.) “When the evidence on an issue conflicts, the decisionmaker is ‘permitted to give more weight to some of the evidence . . . .’ ” (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 349.) The court cannot reweigh the expert evidence. (Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1294.) 

              The EIR’s Review of Studies Examining the Effect of Digital Signs on Roadway Safety

The traffic analysis in the Draft EIR is supported by the Transportation and Traffic Safety Review prepared by Metro’s transportation safety experts, Gibson Transportation Consulting (Gibson). (See AR 2043-2060.) Gibson analyzed the TCN Program “to assess whether the Program’s TCN Structures present potentially significant traffic safety concerns for the surrounding street system.” (AR 2044.) Gibson “reviewed relevant published studies and articles concerning the potential impacts of Commercial Electronic Variable Message Signs (CEVMS) on roadway safety, analyzed state and local signage regulations outlining the requirements for CEVMS systems, and researched ongoing updates to local ordinances. [Gibson] also conducted a review of the Project locations, adjacent roadways, and adjacent freeways in the surrounding community for consistency with the requirements and best practices for digital signage.” (AR 2044.) 

Gibson reviewed numerous studies evaluating potential roadway safety impacts related to digital signs. (AR 719-724, 2045-2046, 2215.) These studies include one conducted by the Federal Highway Administration (FHWA Study), published in 2012, and two studies prepared by the Foundation for Outdoor Advertising Research and Education (Foundation), entitled the Driving Performance Study and the Cuyahoga County Study. (AR 2046-2048.) 

As summarized in the Draft EIR, “[t]he FHWA Study investigated the effect of CEVMS [i.e., digital signs] on driver visual behavior utilizing an eye tracking system.” (AR 719.) “The FHWA Study concluded that ‘the drivers in this study directed the majority of their visual attention to areas of the roadway that were relevant to the task at hand (i.e., the driving task) . . . . When billboards were present, the drivers in this study sometimes looked at them, but not such that overall attention to the forward roadway decreased.” (AR 719.) “The FHWA Study also tracked the drivers’ longest and average fixation duration to roadside objects. . . . The FHWA Study found that the longest fixation duration on a CEVMS was 1.34 seconds, which is slightly higher than the highest static billboard fixation of 1.28 seconds. However, both fixation durations were found to be well below the accepted standard set by the National Highways Traffic Safety Administration (NHTSA), which considers 2.0 seconds to be the threshold at which roadway safety concerns arise. Furthermore, the study found that the mean fixation duration on a CEVMS was 379 milliseconds (ms) compared to 335 ms on a static billboard. These results show that average fixation durations were similar between CEVMS and static billboards. . . .” (AR 720.) 

The Driving Performance Study “found that while the fixations to CEVMS, billboards, and comparison sites were similar, fixation duration was higher for the CEVMS and comparison sites relative to the static billboards and baseline sites. The study found that mean fixation duration was less than 1.0 second, which is well below the 2.0 second fixation duration threshold that is considered dangerous by the NHTSA.” (AR 2047 [summarized by Gibson].) The Cuyahoga County Study “found no statistical difference between conventional and digital billboards and concluded ‘the accident statistics on sections of Interstate routes near billboards are comparable to the accident statistics on similar sections that have no billboards.’ ” (AR 2048.) 

Based on its literature review, Gibson opined “the studies indicate that a correlation between roadway hazards and CEVMS is, at best, inconclusive.” (AR 2049.) Gibson further explained that “the mean fixation on both CEVMS and billboards is less than 1.0 second and the longest fixation on a CEVMS was 1.34 seconds, which is well below the 2.0 second threshold for potentially dangerous driving conditions established by the NHTSA.” (AR 2049.) Gibson concluded “based on [its] review of the studies, and since the Metro TCN Program would operate similarly to the CEVMS, it is anticipated that the Metro TCN Program would similarly be below the NHTSA 2.0 second threshold.” (AR 2054.)

In response to comments received on the Draft EIR, Gibson prepared a Transportation and Traffic Safety Supplemental Analysis. (See AR 3444-3463.) In the supplemental analysis, Gibson reviewed additional studies cited by commenters. (AR 3447, 3451–3454.) After its review of the additional literature, Gibson opined “none of the additional research reviewed identified a causal relationship between traffic collisions and digital billboards and none of the studies suggested that the average glance time at a roadside digital billboard was longer than the two second threshold identified in the FHWA Study. This is consistent with the findings of the Draft EIR, which states that the correlation between digital billboards and traffic collisions was found to be inconclusive.” (AR 3454.)

Petitioners contend Gibson’s expert opinion is not substantial evidence in support of the FEIR’s transportation findings because the FHWA study has been subject to criticism. (See AR 4784-4833 [peer-reviewed critique of FHWA Study].)  Petitioners highlight the following conclusion from the peer-reviewed critique of FHWA Study (FHWA Critique):

When evaluated against the growing number of recent research studies, conducted world-wide, that increasingly demonstrate concerns for the adverse effects of billboard distraction on driver performance, particularly under conditions in which the driver must respond to suddenly appearing or developing traffic hazards, one must question the contribution of this study and the conclusions that can be drawn from it to this important field of research. (AR 4828.)[9]

In responses to comments, the Final EIR considered the criticism of the FHWA Study and noted that “[a]lthough critics have questioned the methodology of the FHWA study, the body of research in this field has not disproved its conclusion—namely that digital [signs] do not directly present a traffic safety concern.” (AR 2224.) The Final EIR also explained that FHWA “is the premier agency in the United States tasked with the construction, maintenance, and preservation of the country’s highway system. The agency conducts hundreds of research studies pertaining specifically to highway safety and mobility and is an authority within the industry when it comes to roadway safety.” (AR 2216, 2224.) The FEIR also noted the FHWA Study has been utilized by other agencies in recent environmental reviews. (AR 2216.) 

A “difference of opinion among experts” does not prove a lack of substantial evidence to support an agency's CEQA findings. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 643.) As the lead agency, Metro was entitled to weigh the expert evidence and resolve any conflict between the FHWA Study and Gibson analysis, on the one hand, and the FHWA Critique and other studies cited by commenters.  Furthermore, as Gibson explained, “the FHWA Critique does not conclude that CEVMS signs cause an increase in unsafe road conditions for drivers or other road users.” (AR 3451-3452.)  Petitioners do not offer a different interpretation of the FHWA Critique. Thus, the FHWA Critique does not invalidate Gibson’s opinion, based in its review of multiple studies, that “a correlation between roadway hazards and CEVMS is, at best, inconclusive.” (AR 2049.)  

Petitioners contend “Metro makes no effort to analyze how the anticipated content of the digital billboards may mitigate or exacerbate driver distraction” (Opening Brief 21:21-22), and Metro dismissed “evidence in the record noting that the impact of the content of the billboards on driver distraction merits further study.” (Opening Brief 21:25-22:1.) As support, Petitioners cite a statement from the FHWA Study that sign content “may be an important factor to consider in future studies that investigate the distraction potential of advertising signs.” (AR 15265.)

The EIR states “the digital display faces would be set to refresh every 8 seconds and would transition instantly with no motion, moving parts, flashing, or scrolling messages. Illumination of the digital displays would conform to applicable Federal and State regulations for signs oriented towards roadways and freeways. The digital displays would be in compliance with Metro’s System Advertising Content Restrictions, which prohibit advertisement of alcohol, smoking, and cannabis, and any content containing violence, obscenities, and other related subject matters.” (AR 714.) Gibson considered these attributes of the Project’s signs in its expert analysis. (AR 2045.) Petitioners do not cite any evidence that the content of the Project’s signs could have a negative impact on safety. Thus, Petitioners’ arguments are not persuasive.

Finally, Petitioners argue the “absence of information does not constitute substantial evidence.” (Opening Brief 22:25.) Petitioners contend the three studies relied on by Metro, among others, are not “relevant not adequate.” (Opening Brief 22:25-28.) As demonstrated by the evidence summarized above, Gibson concluded based on its review of various studies, including those cited by commentators, the research does not demonstrate a correlation between digital signs and traffic accidents. (AR 3447.) As Respondents state, “[t]he fact that a correlation has not been established does not mean there is an absence of evidence.” (Opposition 23:13-14.) Gibson’s expert opinions, the FHWA Study, and the Foundation studies are affirmative, substantial evidence that the Project’s signs will not lead to “significant safety risk on adjacent roadways.” (AR 722.)

              The EIR’s Conclusion the TCN Program Does Not Conflict with Vision Zero

Petitioners also contend the EIR’s finding the Project will not conflict with City’s Vision Zero Program is not supported by substantial evidence. 

“The Vision Zero Los Angeles program, implemented by [Los Angeles Department of Transportation (LADOT)], represents a citywide effort to eliminate traffic deaths in the City by 2025. Vision Zero has two goals: a 20% reduction in traffic deaths by 2017 and zero traffic deaths by 2025. In order to achieve these goals, LADOT has identified a network of streets, called the High Injury Network (HIN), which has a higher incidence of severe and fatal collisions. The HIN, which was last updated in 2018, represents 6% of the City’s street miles but accounts for approximately two thirds (64%) of all fatalities and serious injury collisions involving people walking and biking.” (AR 2051 [Gibson analysis].) 

Metro found the Project does not conflict with Vision Zero because “[t]he TCN Structures would be located outside of the public right-of-way on Metro-owned property” and, therefore, “the TCN Structures would not preclude the City from installing Vision Zero improvements to enhance the safety of the High Injury Network.” (AR 717.)

Petitioners challenge this finding asserting “16 signs slated for City streets are located on the City’s High Injury Network [HIN]” and “research indicat[es] that digital billboards create distraction conditions, . . . .” (Opening Brief 23:21-24 [citing AR 2310, 2348, 2426, 2504, 2528].)  Metro did consider and acknowledge that 16 of the originally proposed TCN Structures would be located adjacent to a street on the HIN. (AR 2225, 3445.) As discussed, substantial evidence supports Metro’s finding that digital signs will not significantly increase roadway collisions.  That signs will be visible from certain HIN streets does not prove an inconsistency with Vision Zero. Further, because the TCN Structures would be located outside the public right-of-way, “the TCN structures would not preclude LADOT from installing Vision Zero improvements, such as installing curb extensions, speed feedback signage, high visibility pedestrian crossings, lane reductions/narrowing, within the public right-of-way to improve pedestrian visibility and safety for all road users.” (AR 3445 [supplemental transportation review].) 

Petitioners also assert Metro’s consistency finding is not supported by substantial evidence because Metro did not consider various other actions proposed by Vision Zero. As Petitioners point out, the City has identified the following actions to achieve Vision Zero: “Engineer and Plan our streets to anticipate human error and minimize the consequences of mistakes; Enforce traffic safety laws in areas that have high collision rates to protect our most vulnerable road users; Educate the public through safety campaigns that reinforce positive driving, bicycling, and walking behavior; Evaluate and Monitor our progress continuously to ensure we remain on-track to reach our targets; Partner with the community, especially as we work toward implementing safety improvements at the neighborhood level; and Implement with a focus on equity.” (Pet. RJN Exh. C at 14.) None of the actions identified by Petitioners, however, have a relationship to the installation of digital signs. Petitioners have not cited any evidence suggesting the installation of digital signs could possibly impede City from pursuing the actions specified in Vision Zero. The EIR was not required to analyze consistency with the proposed actions under such circumstances. 

Based on the foregoing, substantial evidence supports Metro’s findings the Project’s impacts on transportation will be less than significant. Metro’s conclusion the Project does not conflict with Vision Zero is also supported by substantial evidence.

The EIR’s Analysis of Land Use Impacts

Petitioners contend “[t]he EIR’s Land Use impact analysis is deficient because it does not address the details of the sweeping zoning ordinance changes that are a necessary element of the TCN program.” (Opening Brief 24:23-24.) Petitioners contend “at the time the EIR was certified, the land use impacts of the zoning changes implemented by the new zoning ordinance could not appropriately have been evaluated because the lead agency appears to have utterly failed to coordinate with the City regarding the development of the new zoning ordinance.”  (Opening Brief 25:4-7.)

CEQA defines “Project” as an “activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. . . .”

(§ 21065.) “The EIR shall discuss any inconsistencies between the proposed project and applicable general plans, specific plans and regional plans.” (Guidelines § 15125, subd. (d).) 

However, as explained in the Draft EIR, “a conflict between a project and an applicable plan is not necessarily a significant impact under CEQA unless the inconsistency will result in an adverse physical change to the environment that is a ‘significant environmental effect’ as defined by CEQA Guidelines Section 15382.” (AR 634.) “An EIR shall identify and focus on the significant effects of the proposed project on the environment.” (§ 15126.2, subd. (a); see also § 15382 [defining Significant Effect on the Environment].) 

Petitioners do not show, with citation to the record, that Metro needed the text of City’s Zoning Ordinance to analyze whether the Project would result in significant effects on the environment. The EIR includes detailed information on the Project, including the precise locations of the TCN Structures and their characteristics. (See AR 134-152.) The EIR also discloses that the Zoning Ordinance would not authorize signs beyond those proposed as part of the Project. (AR 111, 155.) Notably, Petitioners do not argue any specific language from the Zoning Ordinance could plausibly result in a direct physical change in the environment that was not already considered in the EIR.

Petitioners argue without the details of the Zoning Ordinance, Metro could not “discuss any inconsistencies between the proposed project and applicable general plans, specific plans and regional plans,” as required by section 15125, subdivision (d). (See Opening Brief 25:15-16.)  The court is not persuaded. Appendix I of the EIR includes a detailed table analyzing the Project’s consistency with all the relevant planning documents. (AR 622-648, 1828-1878.)  Petitioners do not argue Metro prejudicially abused its discretion under CEQA in the land use consistency analysis included in Appendix I as well as elsewhere in the EIR. 

In its analysis of land use and planning, the EIR does discuss the attributes of the Zoning Ordinance, stating in part:

[T]he Zoning Ordinance would create a mechanism for the review and approval of the TCN Structures. The Zoning Ordinance would not authorize new signage other than the TCN Structures. The Zoning Ordinance would address the time, manner, and place aspects of the TCN Program, including the allowable locations, size and height limitations, urban design requirements, and applicable community benefits including take-down requirements for the removal of existing static off-premise signs. The Zoning Ordinance would not otherwise change the existing regulations for signs, including off-site and digital signage, in the City. (AR 638 [emphasis added].) 

Petitioners have shown the EIR’s discussion of the Zoning Ordinance was inaccurate. They also do not demonstrate the final version of the Zoning Ordinance included attributes that were not anticipated by Metro and that could plausibly result in a significant environmental effect as a result of inconsistency with other land use plans and policies.  

Petitioners also argue Metro failed to consult with the City in its role as a responsible agency as required by CEQA. (See Opening Brief 25:12-14 [citing Guidelines § 15086, subd. (c)].)[10]  The court disagrees. Metro circulated the Notice of Preparation and Initial Study for comments from responsible agencies, including the City. (AR 112.) Moreover, as shown in the opposition, Metro communicated with City representatives at various points throughout the process of preparing the EIR for the Project, including as to the City’s preparation of the Zoning Ordinance. (See AR 29971-29973, 30020-30022, 30193-30194, 30419-30421, 30606-30609, 30947-30950, 30977-30980, 31003-31004, 34343-34344.) While Petitioners argue in reply “the majority of these emails have absolutely nothing at all to do with the Zoning Ordinance,” Petitioners acknowledge the Zoning Ordinance was discussed in some of the emails. (Reply 19:4-15.) Further, based on the court’s independent review, the emails show substantial coordination between Metro and the City, including meetings and site visits. Petitioners do not demonstrate the level of coordination failed to comply with CEQA.

Finally, Petitioners argue the EIR fails to properly analyze the Project’s conflict with Mobility Plan 2035. The court disagrees. The EIR explained the Project would generally be consistent with this element of the City’s General Plan, except for TCN Structures NFF-7 and NFF-12, which would conflict with Policy 2.16. (AR 641-642, 1844-1848.) Policy 2.16 seeks to ensure that modifications to scenic highways do not impact the unique identity or characteristic of that scenic highway. (AR 18824.) The EIR considered the aesthetic impacts of the two TCN Structures the EIR disclosed would be inconsistent with Policy 2.16, but did not consider those signs alone to have a significant aesthetic impact. (AR 203-204, 214-216.) As discussed, inconsistency alone is not a physical impact on the environment. Petitioners have not shown, with record citation, that substantial evidence does not support Metro’s determination the Project’s inconsistency with Policy 2.16 for two signs will not result in a significant effect on the environment. 

Based on the foregoing, Petitioners do not show any prejudicial abuse of discretion in the EIR’s analysis of land use impacts.

Is Metro’s Finding that Alternatives Are Infeasible Supported by Substantial Evidence? 

Petitioners contend Metro improperly rejected the Project alternatives “on the basis that it will not maximize its advertising revenue and reach.” (Opening Brief 30:5-6.) 

“CEQA mandates that public agencies refrain from approving projects with significant environmental effects if there are feasible alternatives or mitigation measures that can substantially lessen or avoid those effects.” (City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1421; see § 21002.) 

The EIR states “[t]he underlying purpose of the Project is to provide a network of TCN Structures that would incorporate intelligent technology components to promote roadway efficiency, improve public safety, augment Metro’s communication capacity, provide for outdoor advertising where revenues would fund new and expanded transportation programs consistent with the goals of the Metro 2028 Vision Plan, and result in an overall reduction in static signage displays throughout the City of Los Angeles.” (AR 137.) The EIR identifies several specific objectives, including to:

·       Incorporate features for real-time data collection to aid in traffic signal timing, microtransit data, and Metro vanpool on-demand services.

·       Geographically space the multifunctional TCN Structures to expand Metro’s transportation public messaging network and ability to broadcast information to commuters in a variety of ways to further increase Metro’s visibility and accessibility for all commuters.

·       Improve public safety by notifying the public of roadway improvements, road hazards, Earthquake Early Warning System notifications, Amber Alerts, and emergency situations.

·       Maximize efficiency of the congested road network by promoting public awareness of travel alternatives based on geography and time constraints such as alternative routes, carpooling alternatives, and public transportation opportunities.

·       Maximize advertising revenue that would be utilized by both Metro and the City to fund new and expanded transportation programs that would further Goal 2 of the Metro Vision 2028 Strategic Plan, by creating a funding source for programs to enhance experiences for all Metro users such as improving security and increasing customer satisfaction. (AR 18, 137-138.) 

The EIR examined two alternatives in addition to the No Project alternative. Alternative 2, which would avoid the Project’s significant impacts to historic resources, would eliminate TCN Structures NFF-2, NFF-3, NFF-16, and NFF-21. Alternative 3, which would avoid all of the Project’s significant impacts, would eliminate TCN Structures NFF-2, NFF-3, NFF-16, NFF-21, FF-29, and FF-30. (AR 83-88.)

Because the EIR found the Project would have certain significant environmental effects, Metro was required to make a finding that “[s]pecific economic, legal, social, technological, or other considerations . . . make infeasible the mitigation measures or alternatives identified in the environmental impact report.” (§ 20181, subd. (a)(3) [emphasis added].) “Under this authority, an alternative that ‘is impractical or undesirable from a policy standpoint’ may be rejected as infeasible. [Citation.] Additionally, an alternative ‘may be found infeasible on the ground it is inconsistent with the project objectives as long as the finding is supported by substantial evidence in the record.’ ” (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 1001 [CNPS].)

Here, Metro rejected Alternatives 2 and 3 because they would not meet the Project’s basic objective to maximize revenue to fund transportation projects to implement Metro’s Vision 2028 Strategic Plan. In addition, the EIR rejected Alternatives 2 and 3 because they would be less effective at fulfilling the Project objectives to: (1) collect real-time data to aid in signal timing, micro-transit data, and Metro vanpool on demand services, (2) increase public safety notifications, (3) expand Metro’s transportation public messaging network to increase Metro’s visibility and accessibility for all commuters, and (4) increase geographical coverage of Metro’s network and ability to broadcast travel alternatives to improve roadway safety and congestion.  (AR 84-88.) 

Petitioners do not show Metro prejudicially abused its discretion in its finding the alternatives were not feasible. Metro has discretion under CEQA to balance these economic, social, and policy considerations when evaluating the feasibility of the alternatives. In CNPS, for example, the agency approved a trail-construction project after rejecting as infeasible various alternatives that would have provided lesser degrees of trail access, including compliance with Americans with Disabilities Act requirements. (CNPS, supra, 177 Cal.App.4th at 972.) The Court of Appeal held that the agency’s infeasibility findings were permissibly “based on policy considerations, particularly the City's interest in promoting transportation alternatives as well as access to its open space for persons with disabilities.” (Id. at 1001.)

Similarly here, Metro could reasonably determine Alternatives 2 and 3, which would remove several TCN Structures, would not maximize advertising revenue and would be less effective at fulfilling the other Project objectives, which depend in part on the number of TCN Structures approved. “At bottom, [Petitioners’] disagreement is ‘with the nature of the balance struck between those interests,’ ” which is not a basis to overturn the agency’s infeasibility findings.  (CNPS, supra, 177 Cal.App.4th at 1001.)

Petitioners do not show Metro defined “impermissibly narrow project objectives so as to inappropriately justify rejection of project alternatives that would otherwise have less impacts.”  (Opening Brief 30:7-8.) Alternative 2 would have removed five TCN Structures, while Alternative 3 would have removed six. While it could be expected that a reduction in the number of TCN Structures could reduce the effectiveness of the Project in meeting its objectives, Metro could weigh the effectiveness of each alternative in its infeasibility determination. Accordingly, Metro’s objectives to “maximize” revenue and the “efficiency of the congested road network,” among others, did not preclude alternatives to the Project. This is evident given that Metro approved a modified version of the Project that eliminated several TCN Structures.  

In reply, Petitioners argue for the first time that the “City of Los Angeles’ post-EIR certification decision to remove TCN structures located in historical resource areas (NFF-2, NFF-3, NFF-16, and NFF-21) and coastal resource areas (FF-29 and FF-30) serves to demonstrate that Metro’s findings on infeasibility of Alternatives 2 and 3 were bogus and unsupported.” (Reply 20:18-21:1.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) 

In August 2023, well before Petitioners filed their Opening Brief on December 29, 2023, the City published an Addendum addressing a proposal to eliminate several TCN Structures from the Project, including FF-29, NFF-2, NFF-3, and NFF-14, NFF-15, NFF-16, and NFF-21. (Resp. RJN and Wright Decl. Exh. A at 12-13) The City also approved the Zoning Ordinance for the Project on December 26, 2023, before Petitioner’s filed their Opening Brief, which removed multiple structures from the Project. (Resp. RJN Exh. B-D.)[11] Because Petitioners should have known the TCN Structures at issue were removed before they filed their Opening Brief, Petitioners have not shown good cause to raise these new arguments in reply about the feasibility of alternatives.

Alternatively, and on the merits, the removal of TCN Structures NFF-2, NFF-3, NFF-16, NFF-21, FF-29, and FF-30 does not appear to undermine Metro’s feasibility findings. While the removal of these structures suggests the Project could possibly be developed as Alternatives 2 and 3, Metro’s findings of infeasibility were based on its balancing of various factors, and its determination that Alternatives 2 and 3 would not fulfill the objective to maximize revenue and would be less effective at achieving others. That the City later removed certain structures from the Project does not mean Metro’s balancing of interests, based on the information in the EIR, was unreasonable or unsupported by substantial evidence.

Finally, Petitioners cite no authority that Metro was required to quantify precisely “how much revenue might not be gained with the reduction of a few billboard structures, or the potential for alternative sites that would not impact historical resources.” (Opening Brief 30:14-16.)  Accordingly, Petitioners’ argument is unpersuasive. Further, Metro balanced the objective to maximize revenue along with other Project objectives, which would not be possible to “quantify.” As discussed, Petitioners do not show that Metro’s balancing of interests was unreasonable or unsupported by substantial evidence.

CONCLUSION 

The petition for writ of mandate is denied.

IT IS SO ORDERED. 

March 13, 2024                                                                      ________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court