Upland Community First v. City of Upland CA4/2 (2024) · DecisionDepot
Upland Community First v. City of Upland CA4/2
California Court of Appeal Aug 15, 2024 No. E078241Unpublished
Filed 8/15/24 Upland Community First v. City of Upland CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
UPLAND COMMUNITY FIRST,
Plaintiff and Appellant, E078241
v. (Super.Ct.No. CIVDS2013558)
CITY OF UPLAND, OPINION
Defendant and Respondent;
BRIDGE DEVELOPMENT PARTNERS, LLC,
Real Party in Interest and Appellant.
APPEAL from the Superior Court of San Bernardino County. David S. Cohn,
Judge. Reversed with directions.
Briggs Law Corporation, Cory J. Briggs and Janna M. Ferraro for Plaintiff and
Appellant.
Monchamp Meldrum, Amanda Monchamp and Joanna Meldrum for Real Party in
Interest and Appellant.
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Richards, Watson & Gershon and Ginetta L. Giovinco, for Defendant and
Respondent.
I. INTRODUCTION
In April 2020, defendant and respondent the City of Upland (City) approved the
development of a 201,096 square-foot “warehouse/parcel delivery service building,” to
be located on 50.25 acres near the Cable Airport (the project). As the lead agency for the
project under the California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000
et seq.1), the City passed a resolution adopting a mitigated negative declaration (MND)
for the project (§ 21064.5; 14 Cal. Code Regs. (“CEQA Guidelines”) § 15369.5). In
related resolutions, the City approved an airport land use compatibility request, a site plan
and design review, lot line adjustment, and development agreement for the project. There
is no confirmed tenant for the project.
Plaintiff and appellant Upland Community First (UCF) filed a petition for a writ of
mandate and complaint for declaratory and injunctive relief, asking the superior court to
order the City to set aside the MND and other project approvals. Among other things,
UCF claimed the project violated CEQA (§ 21000 et. seq.) because a fair argument could
be made that the project would have significant impacts on greenhouse gas (GHG)
emissions, traffic, and air quality. Thus, UCF claimed the City should have prepared an
environmental impact report (EIR) to assess the project’s potential impacts on GHG
emissions, traffic, and air quality.
1 Undesignated statutory references are to the Public Resources Code.
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The court granted UCF’s petition solely on the ground that insufficient evidence
supported the City’s use of two quantitative “ ‘thresholds of significance’ ” for measuring
the project’s cumulative impacts on GHG emissions: (1) a threshold of 10,000 metric
tons of carbon dioxide equivalent per year (MTCO2 e/yr.) (the 10,000 threshold), and
(2) a lower threshold of 3,000 MTCO2 e/yr. (the 3,000 threshold). The City analyzed the
3,000 threshold in a “Supplement GHG Analysis,” in response to comments on the draft
MND that the 10,000 threshold was too high for the project. The comments indicated
that the 10,000 threshold was appropriate for large, industrial projects with primary
stationary-source GHG emissions (e.g., power plants, factories), and the 3,000 threshold
was appropriate for mixed-used commercial/industrial projects, with primary mobile-
source GHG emissions, like the project. In response, the project developer, real party in
interest Bridge Development Partners, LLC (Bridge), revised the project to add
sustainability features (e.g., roof-top solar, EV-charging stations) to ensure that the
project’s GHG emissions would be below the 3,000 threshold.
In its order granting the petition, the court stated that an EIR was not “necessarily”
required for the project because the City had “discretion to choose an appropriate
‘threshold of significance’ [for GHG emissions] and to determine under that standard
whether an EIR is required.” The judgment orders the issuance of a preemptory writ,
directing the City to set aside its resolutions approving the MND and the other project
approvals, solely “for the purpose of addressing the sufficiency of evidence supporting
the City’s threshold of significance for GHG emissions under CEQA . . . .” Both UCF
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and Bridge appeal from the judgment. The City does not appeal but joins the cross-
respondent’s brief portion of Bridge’s combined reply brief and cross respondent’s brief.
In its appeal, Bridge claims substantial evidence supports the City’s use of both
the 10,000 MTCO2 e/yr. and 3,000 MTCO2 e/yr. quantitative thresholds of significance
for GHG emissions. Alternatively, Bridge claims that even if substantial evidence does
not support the City’s use of either quantitative threshold, substantial evidence supports
the City’s determination that the project’s GHG impacts would be less than significant
based on a qualitative, performance-based standard—that is, because the project’s
features are consistent with the City’s 2015 climate action plan (the Upland Climate
Action Plan or UCAP). Bridge further claims any CEQA-related error in the City’s
GHG-related findings was not prejudicial because the City fully disclosed and evaluated
the project’s GHG emissions, imposed adequate mitigation measures, and the City and
the public were fully informed of the significance of the project’s GHG impacts.
We agree with Bridge that substantial evidence supports the City’s finding that the
project would not have significant impacts on GHG emissions. Specifically, substantial
evidence both supports the City’s use of the 3,000 threshold for measuring the
significance of the project’s GHG emissions and shows that the project’s GHG emissions
would be below the 3,000 threshold. Thus, we do not consider Bridge’s two alternative
claims, that the project’s (1) compliance with the 10,000 threshold and (2) consistency
with the UCAP also support the City’s determination that the project would have less
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than significant impacts on GHG emissions.2 We further conclude that Bridge forfeited
its UCAP consistency claim by failing to raise the claim in the superior court as a defense
to UCF’s claim that insufficient evidence supports the City’s determination that the
project would have less than significant impacts on GHG emissions.
In its appeal, UCF claims the City undercounted the number of vehicles and
vehicle trips the project would generate for purposes of evaluating the project’s impacts
on traffic, and by extension, on air quality and GHG emissions. More specifically, UCF
claims the City failed to “perform a legally sufficient evaluation” of the project’s traffic
and transportation impacts by failing to conduct a vehicle miles traveled (VMT) analysis.
UCF claims that, because the City’s conclusion that the project would not have
significant impacts on GHG emissions and air quality is based in part on the City’s
undercounting of vehicles and vehicle trips and the City’s failure to conduct a VMT
analysis, substantial evidence supports a fair argument that the project will have
significant impacts on traffic, transportation, air quality, and GHG emissions.
2 Bridge has requested that we take judicial notice of an amici curiae brief, filed by the California Attorney General and the California Air Resources Board, in Albert Thomas Paulek, et al. v. Moreno Valley Community Services District (Nov. 20, 2020), E071184) [non pub. opn.]). (Evid. Code, §§ 452, subd. (d), 459.) Bridge claims the brief supports Bridge’s claim that substantial evidence supports the City’s reliance on the 10,000 threshold. UCF opposes the request, and we deny it. Even if the brief supports the City’s reliance on the 10,000 threshold, the brief is irrelevant to the dispositive question of whether sufficient evidence supports the City’s reliance on the 3,000 threshold. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089, fn. 4 [denying request for judicial notice of irrelevant matter].)
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We find no merit to UCF’s appeal. Thus, we reverse the judgment and remand the
matter with directions to enter judgment in favor of the City and Bridge on UCF’s
petition and complaint.
II. FACTS AND PROCEDURE
A. The Project Site Is Currently Used for a Rock and Gravel Crushing Operation
The 50.25-acre project site is located adjacent to the Cable Airport, northeast of
Central Avenue and Foothill Boulevard in the City. The site is currently used for a rock
and gravel crushing operation, involving the use of heavy equipment and trucks. On a
daily basis, an average of 78 trucks travel to and from the site. The site is surrounded by
a mix of commercial and industrial uses, and the City’s has designated and zoned the site
for “commercial/industrial mixed use (C/I-MU).”
B. The Proposed Project Is a 201,096 Square-Foot Warehouse Building
On April 25, 2019, Bridge submitted its original application to develop the project
site. Bridge originally sought to build three warehouse buildings totaling 977,246 square
feet. In response to concerns that the project was too large, on October 1, 2019, Bridge
submitted revised plans, proposing to build a single warehouse building totaling 276,825
square feet. Following additional review, on November 23, 2019, Bridge submitted the
plans for the project in its approved form: a single, one-level, 201,096 square-foot
building.
The proposed 201,096-square foot building would include 191,096 square feet for
“warehouse/parcel delivery uses” and 10,000 square feet for an employee office area and
“a small area for visitors to pick up pre-ordered packages.” The MND states that, “[t]o
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be conservative, the initial study and technical studies prepared for this Project analyzed a
276,250 [square-foot] building, which is 75,154 square feet more than the 201,096-
[square foot] building [currently] proposed . . . .” The building would include “16 dock-
hi doors for trucks, and 8 van loading doors,” and there would be 337 parking spaces,
12 trailer stalls, and 1,104 van parking stalls. “Trees and other vegetation” would screen
the van loading areas. In total, the project would have 464,380 square feet of
landscaping, covering 21 percent of the project site.
C. In 2015, The City Updated Its General Plan by Adding a Commercial/Industrial
Mixed-Use Designation (CI-MU) and a Climate Action Plan (the UCAP)
In 2015, the City updated its general plan (the GPU or General Plan Update) and
the Upland Zoning Code to add a land use designation for a “commercial/industrial
mixed use” or “CI-MU” zoning district. The EIR for the GPU (the GPU EIR) anticipated
and analyzed growth of 6,374,695 square feet of total non-residential uses in the City by
2035, including 3,710,465 square feet of nonresidential development in the C/I-MU
designation. The project site is designated and zoned C/I-MU in the 2015 GPU and
Upland Zoning Code.
The GPU added a “climate action plan” to the City’s general plan (the UCAP or
Upland Climate Action Plan). The environmental impacts of the UCAP were reviewed in
the 2015 GPU EIR. The UCAP is intended to implement the City’s policy of reducing
GHG emissions, as outlined in the GPU and consistent with California’s statewide GHG
reduction goals. The UCAP states that projects that are consistent with the GPU’s 2035
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growth projections are “consistent with the [UCAP] and will not have a potentially
significant effect on the environment with respect to greenhouse gas emissions.”
The UCAP states that the City’s approach to reducing GHG emissions, through
the GPU and the UCAP, is consistent with CEQA Guidelines section 15183.5,
subdivision (a), which allows lead agencies to adopt plans for reducing GHG emissions,
“that can then be used for project-specific environmental documents to tier from . . . .”
The UCAP contemplates that it would be “updated on an on-going, as needed basis to
ensure the City’s climate protection efforts reflect both current legislation and emerging
best practices.”
D. The City’s Environmental Review of the Project
As CEQA requires, the City performed an initial study of the project to determine
whether it may have significant environmental effects. (CEQA Guidelines, § 15063.) On
December 16, 2019, the City circulated the draft initial study and proposed MND (the
draft MND) to the public for review and comment. (CEQA Guidelines, § 15105, subd.
(b).) As indicated, the draft MND analyzed the project as a larger, 276,350-square-foot
warehouse, not as the 201,096-square-foot warehouse Bridge was proposing. The draft
MND concluded that, with mitigation, all environmental impacts of the project would be
less than significant. The draft MND analyzed potential impacts from the project’s GHG
emissions using (1) a quantitative comparison to the 10,000 threshold, which, according
to the draft MND, was recommended by the South Coast Air Quality Management
District (the SCAQMD), and (2) a qualitative evaluation of the consistency of the
project’s GHG emissions with the 2015 GPU and UCAP.
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Comments on the draft MND indicated the 10,000 threshold was too high for a
mixed-use commercial/industrial warehouse project, and urged the City to use a 3,000
threshold that the SCACMD had proposed lead agencies use for all land use projects, and
for “mixed-use” commercial/industrial projects in particular. In response, and following
further working group sessions with the City Planning Commission, Bridge further
refined the project by adding sustainability features “to reduce the project’s GHG
emissions even further so that they would be less than 3,000 metric tons of [carbon
dioxide equivalent] per year.” The added sustainability features include solar panels to
allow the building to operate with “net-zero” electricity consumption; EV [electric
vehicle]-ready parking spaces and charging stations; and additional landscaping.
The City also completed a “supplemental GHG analysis of the project’s emissions,
showing that, with revised (increased) baseline emissions, and the added sustainability
features, the project would generate 2,904 [MTCO2 e/yr.,] less than the 3,000 threshold.”
Like the original GHG analysis in the draft MND, the Supplemental GHG analysis
assumed the project would be a 276,250-square- foot warehouse building. Two peer
review entities evaluated and confirmed the City’s Supplemental GHG analysis.
E. The MND and Project Approvals
In February 2020, the City Planning Commission and Cable Airport Land Use
Committee (ALUC) recommended that the City Council adopt and approve the proposed
MND, together with other project approvals: a proposed site plan and design review, lot
line adjustment, and development agreement. In April 2020, the City adopted resolutions
adopting the MND and the related proposals.
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F. The Superior Court Proceedings
In July 2020, UCF filed a petition for a writ of mandate under CEQA together
with a complaint for declaratory and injunctive relief, asking the superior court to order
the City to set aside its resolutions adopting the MND and other project approvals, on the
grounds the approvals violated CEQA and other applicable laws. In a 65-page order, the
court granted the petition solely on the that ground that insufficient evidence supported
the City’s finding that the project would not have significant impacts on GHG emissions.
The court ruled that the record contained insufficient evidence to show that either the
10,000 threshold or the 3,000 threshold were appropriate thresholds of significance for
measuring the project’s GHG emissions.
The court’s order states: “[T]he court grants UCF’s petition on the sole ground
that substantial evidence does not support the ‘threshold of significance’ chosen for GHG
emissions. As a result, the City’s finding that there will be no significant effect on the
environment with respect to GHG emissions is without adequate support. This does not
mean, necessarily, that an EIR is required. The City has discretion to choose an
appropriate ‘threshold of significance’ and to determine under that standard whether an
EIR is required. [CEQA Guidelines, § 15064.4, subd. (c)).] The Development
Agreement is also set aside, because its approval was based, in part, on the findings of the
MND that there will be no significant effect on the environment with respect to GHG
emissions.” On October 19, 2021, the court entered judgment in favor of UCF. Both
Bridge and UCF appealed.
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III. STANDARD OF REVIEW
A. Mitigated Negative Declarations Under CEQA
“ ‘[A] public agency pursuing or approving a project need not prepare an EIR
unless the project may result in a “significant effect on the environment” (§§ 21000,
subd. (a), 21151, subd. (a)), defined as a “substantial, or potentially substantial, adverse
change in the environment” (§ 21068). If the agency’s initial study of a project produces
substantial evidence supporting a fair argument the project may have significant adverse
effects, the agency must (assuming the project is not exempt from CEQA) prepare an
EIR.’ ” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th
155, 171 (Save the Plastic Bag Coalition); Save Agoura Cornell Knoll v. City of Agoura
(b) Substantial Evidence Supports the City’s Use of the 3,000 Threshold
We disagree with the trial court’s conclusion that insufficient evidence supports
the City’s use of the 3,000 threshold for measuring the significance of the project’s GHG
emissions. Substantial evidence shows that the 3,000 threshold is an appropriate
numerical threshold for measuring the significance of the project’s GHG emissions. This
evidence includes Dr. Sarathy’s comments and letter to the City, explaining why the
10,000 threshold was inappropriate for the project and urging the City to use the “more
stringent” 3,000 threshold. Dr. Sarathy’s comments and letter, and the record as a whole,
show there is indeed a “scientific and factual” basis for using the 3,000 threshold for the
project. (CEQA Guidelines, § 15064, subd. (b).)
Dr. Sarathy noted that, according to the minutes of the “GHG CEQA Significance
Group Stakeholder Meeting # 15” on September 28, 2010, the SCAQMD “presented lead
agencies with the option” of using the 3,000 threshold for “all [nonindustrial] land use
types,” including “mixed-use” commercial and residential projects in particular.
Although these minutes are not in the administrative record (as the court pointed out), the
record includes the minutes of an earlier working group meeting, the January 28, 2009
“GHG CEQA Significance Threshold Stakeholder Working Group Meeting #8.” These
minutes show the 3,000 threshold is based on data collected by the Governor’s Office of
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Planning and Research (OPR), the agency responsible for drafting the CEQA Guidelines.
(See Tsakopoulos Investments, LLC v. County of Sacramento (2023) 95 Cal.App.5th 280,
288, fn. 4.)
The OPR data measured GHG emissions from 711 residential, commercial, and
“mixed use” residential and commercial projects for which the OPR received an EIR or
MND. According to the OPR data, 90 percent of all “residential/commercial projects” in
the 711 projects surveyed (the 90 percent “capture rate”) had GHG emissions ranging
from 2,983 to 3,143 MTCO2 e/yr. The 90 percent capture rate for “residential/mixed use
residential projects” ranged from 3,310 to 3,596 MTCO2 e/yr., while the 90 percent
capture rate for “commercial/mixed use commercial projects” ranged from 1,390 to 1,481
MTCO2e /yr. Dr. Sarathy’s January 17, 2020 letter, and a slide from the September 28,
2010 SCAQMD working group meeting, indicate that the SCAQMD proposed a 3,000
threshold or “screening value” for all nonindustrial land use types, “based on review of
the OPR database (711 CEQA projects) using the 90% capture rate approach.” Thus, the
3,000 threshold, as applied to all nonindustrial projects, will include or “capture” the
GHG emissions levels of approximately 90 percent of all nonindustrial projects.3
3 In response to public comments on the draft MND, the City defended its use of the 10,000 threshold, and acknowledged that the 3,000 and 10,000 thresholds were both based on the “90% capture rate approach.” The City advised: “The SCAQMD has not adopted a GHG significance threshold that applies to most land use development projects. The 10,000 . . . threshold was adopted to capture 90 percent of total emissions from all new or modified industrial (stationary source) projects. . . . A 3,000 [threshold] was proposed as a screening threshold for land use development projects but was never adopted in any form by SCAQMD. In the absence of an adopted threshold, the lead agency has discretion to select a significance threshold.”
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Substantial evidence shows that screening nonindustrial projects for whether their
GHG emissions fall above or below the 3,000 threshold is a reasonable way to screen
such projects for cumulatively considerably GHG emissions. That is, it reasonable to
consider nonindustrial projects exceeding 3,000 threshold (ten percent of all nonindustrial
projects) to be cumulatively considerable contributors to GHG emissions in comparison
to nonindustrial projects with GHG emissions below the 3,000 threshold. As noted,
“[t]he challenge for CEQA purposes is to determine whether the impact of the project’s
emissions of greenhouse gases is cumulatively considerable, in the sense that ‘the
incremental effects of [the] individual project are considerable when viewed in
connection with the effects of past projects, the effects of other current projects, and the
effects of probable future projects.” (Center for Biological Diversity, supra, 62 Cal.4th
219.) Using a 90 percent capture rate to screen nonindustrial, mixed use residential and
commercial projects for cumulatively considerable (significant) GHG emissions is a
reasonable way to meet this challenge.
Substantial evidence also supports the City’s use of the 3,000 threshhold in
evaluating the significance of this project’s GHG emissions, after the project was revised
during the public comment period to add the sustainability features. The slides from the
SCAQMD meetings, Dr. Sarathy’s comments, and other comments in the record show
the 3,000 threshold is appropriate for mixed use commercial and residential projects.
Thus, the use of the 3,000 threshhold use for this project was conservative, in that it
tended to underestimate a reasonable level of GHG emissions for this project, which a
mixed use commercial and industrial project. The record indicates that industrial
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projects, and mixed use commercial and industrial projects, like this project, tend to have
higher GHG emissions than mixed use commercial and residential projects, commercial
projects, and residential projects. But this project, despite its industrial component, is
projected to have GHG emissions below the 3,000 threshold, the significance threshold
for a typically lower emission, mixed use commercial and residential project.
Thus, the City did not abuse its discretion in concluding the project’s GHG
emissions would not be cumulatively considerable because they will be below the 3,000
threshold. Substantial evidence supports the City’s determination, in its resolution
adopting the MND, that the project, with the added sustainability features and related
GHG-related mitigation measures, will not have significant, cumulatively considerable
impacts on GHG emissions.
(c) The Increase in Baseline “Existing Emissions”
UCF argues, and the trial court agreed, that insufficient evidence supports the
City’s finding that the project would not have significant impacts on GHG emissions,
based on the 3,000 threshold, because the supplemental GHG analysis did not explain
why “existing baseline emissions increased” from 899 MTCO2 e/yr. to 2,437 MTCO2
e/yr., an increase of around 1,537 MTCO2 e/yr. Indeed, the supplemental GHG analysis
did not explain the reason for the 1,537 MTCO2 e/yr. increase in baseline or existing
emissions. But circumstantial evidence in the record plainly indicates that the 1,537
MTCO2 e/yr. increase is attributable to the 78 trucks being used in the existing
operations on the project site.
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The supplemental GHG analysis states that its 2,437 MTCO2 e/yr. in existing
baseline GHG emissions is based on “updates to the existing emissions inventory” which
were not included in the original GHG analysis in the draft MND. Although the
supplemental GHG analysis does not identify the sources of these “updates,” (the 1,537
MTCO2 e/yr. increase in existing GHG emissions), a comparison of the original and
supplemental GHG analyses indicates that the 1,537 MTCO2 e/yr. increase is attributable
to the 78 trucks used in the existing rock and gravel processing operation.
The draft MND explained that the existing rock and gravel operation used “eight
pieces off-road heavy-duty diesel equipment, such as rubber-tire loaders, stackers, static
and mobile screens, cone and crushers, and water trucks. Additionally, the existing sand
and gravel processing operations include approximately 78 trucks per day to off-haul
materials processed on -site. . . . [The ]traffic study conservatively does not take credit
for the existing trucks.” These statements in the draft MND, together with the 1,537
MTCO2 e/yr. increase in the existing GHG emissions inventory in the supplemental
GHG analysis, indicate that, just as the traffic study in the draft MND did not “take
credit” for the daily trips generated by the 78 trucks, the original GHG analyses in the
draft MND likewise did not include GHG emissions from the 78 trucks.
Moreover, a comparison of the “data sheets” in the original and supplemental
GHG analyses indicates that the GHG emissions from the 78 trucks were omitted from
the original GHG analysis, but were included in the “updated” emissions inventory in the
supplemental GHG analysis of the 3,000 threshold. In the original GHG analysis, the
data sheets show that existing GHG emissions for unmitigated “off-site construction,” in
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the “hauling” category, were 34 MTCO2 e/yr. In the supplemental GHG analysis, the
data sheets show that the same GHG emissions were 1,572 MTCO2 e/yr.—an increase of
1,537 MTCO2 e/yr.
The substantial size of the increase in baseline GHG emissions, together with the
statements in the draft MND, indicates that the increase is attributable to the78 trucks
used to “off haul” materials from the project stie. As Bridge points out, the 34 MTCO2
e/yr. in the original GHG analysis “accounted for only minimal travel of construction
equipment to and from the site.” (Added italics.) But the corrected, 1,572 MTCO2 e/yr.
in exiting GHG emissions (an increase of 1,537) credibly reflects the use of the 78 trucks
in the rock and gravel processing operations. For these reasons, it is reasonable to infer
that the original GHG analysis did not account for the existing GHG emissions from the
78 trucks used “per day to off-haul materials processed” in the rock and gravel processing
operation, and that the supplemental GHG analysis corrected for and did include the
GHG emissions from the 78 trucks in its analysis of the 3.000 threshold.
Thus, we disagree with the trial court’s conclusion that insufficient evidence
supports the City’s use of the 3,000 threshold because the City failed to explain the basis
of the 1,537 MTCO2 e/yr. increase in the “existing emissions” inventory (from 899
MTCO2 e/yr. to 2,437.) The record sufficiently supports the City’s computation of the
updated 2,437 MTCO2 e/yr. baseline.
Moreover, Bridge argues and we agree that UCF failed to exhaust administrative
remedies concerning the composition of the 2,437 MTCO2 e/yr. “existing emissions”
baseline. “To satisfy the exhaustion doctrine, an issue must be ‘fairly presented’ to the
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agency. [Citation.] Evidence must be presented in a manner that gives the agency the
opportunity to respond with countervailing evidence.” (Citizens for Responsible
Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515,
528.) The petitioner “ ‘has the burden of proof to show exhaustion occurred.’ ” (Stop
Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, 459.)
UCF has not met this burden. Throughout the administrative proceedings, no one
asked the City to explain the sources of either the updated 2,437 MTCO2 e/yr. baseline or
the original 899 MTCO2 e/yr. baseline. Thus, the City was never asked to explain the or
sources of the 1,538 MTCO2 e/yr. increase in the baseline. In addition, UCF forfeited
the claim by failing to raise it in the trial court until its reply brief. (Golden Door
Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 518.)
(d) The City’s CEQA Findings Are Properly Based on the 3,000 Threshold
UCF argues that, by the City’s “own admission,” the City’s use of the 3,000
threshold in the supplemental GHG analysis does not support the City’s GHG-generation
findings because “the GHG-generation findings in the MND relied solely on the City’s
determination that the 10,000 threshold applied and that the Project’s net GHG
generation would be less than the 10,000 threshold.” This argument conflates the City’s
finding, in its resolution adopting the MND, that the project, with the added sustainability
features and related mitigated measures, would not significantly impact GHG emissions,
with the City’s finding, in the superseded, draft MND, that the project would not
significantly impact GHG emissions because its GHG emissions would not exceed the
10,000 threshold. As explained, the City’s resolution adopting the final MND is
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supported by substantial evidence, including the supplemental GHG analysis, which
concluded that the project’s GHG impacts would not be cumulatively considerable
because they would not exceed the 3,000 threshold.
UCF suggests the supplemental GHG analysis does not constitute sufficient
evidence to support the City’s resolution adopting the MND, because the supplemental
GHG analysis states that it was prepared “for informational purposes only.” As Bridge
points out, however, UCF cites no authority that “discounts” the supplemental GHG
analysis “as substantial evidence.” In sum, the City’s resolution adopting the final MND
is supported by the supplemental GHG analysis and the record as a whole, which show
that the project’s net GHG emissions will not be cumulatively considerable as they will
not exceed the 3,000 threshold.
C. No Substantial Evidence Supports a Fair Argument That the Project’s GHG
Emissions May Be Cumulatively Considerable
Having concluded that substantial evidence supports the City’s use of the 3,000
threshold for assessing the significance of the project’s GHG emissions, we recognize
that a significance threshold “is not conclusive . . . and does not relieve a public agency
of the duty to consider the evidence under the fair argument standard. [Citations.] A
public agency cannot apply a threshold of significance or regulatory standard ‘in a way
that forecloses the consideration of any other substantial evidence showing there may be
a significant effect.’ ” (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 342.)
UCF claims it presented a fair argument that the project’s GHG emissions may be
cumulatively considerable due to “the marked increase in mobile source emissions
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caused by the project” over the baseline, existing GHG emissions from the existing rock
and gravel crushing operation. Specifically, UCF argues it showed the project may have
cumulative considerable GHG emissions (1) due to “increased emissions from the influx
of delivery cars and vans—that is, because the project will have higher GHG emissions
than the rock and gravel crushing operation, and (2) because “the traffic counts for the
project were artificially low.” As we explain below in our discussion of UCF’s appeal,
UCF has not shown there is a fair argument that the project may have cumulatively
considerable impacts on GHG emissions.
D. Bridge Has Forfeited the UCAP Consistency Argument
In their joint opposition brief to UCF’s petition, Bridge and the City defended
UCF’s claim that insufficient evidence supported the City’s determination that the project
would not significantly impact GHG emissions—solely by arguing that substantial
evidence supported the City’s finding that the project’s GHG emissions would not exceed
the 10,000 and 3000 MTCO2 e/yr. thresholds. But Bridge and the City did not claim that
the project’s GHG emissions would be insignificant because the project is consistent with
the UCAP. (See McCann v. City of San Diego (2021) 70 Cal.App.5th 51, 92 [Climate
action plans “ ‘may, if sufficiently detailed and adequately supported, be used in later
project-specific CEQA documents to simplify the evaluation of the project’s cumulative
contribution to the effects of greenhouse gas emissions.’ ”].) Counsel for Bridge
mentioned the UCAP consistency argument for the first time at the hearing on UCF’s
petition in the superior court, but the court appropriately did not rule on the unbriefed
issue.
30
In failing to raise the UCAP consistency argument as a defense to UCF’s claim
that insufficient evidence supported the City’s determination that the project’s net GHG
emissions would not be cumulatively considerable, Bridge failed to preserve the claim for
appeal. That is, Bridge forfeited the argument it now raises in this appeal that the City’s
less-than-significance finding for the project’s net GHG emissions is sufficiently
supported by the City’s UCAP consistency finding, independent of the City’s findings
that the project’s net GHG emissions would be below the 10,000 and 3,000 thresholds.
(See In re T.F. (2017) 16 Cal.App.5th 202, 213.) We decline to exercise our discretion to
consider the UCAP consistency issue. (Id. at pp. 213-214.)
V. ANALYSIS/ UCF’S APPEAL
In its appeal, UCF claims its petition should have been granted on an additional
ground, namely, (1) the City performed a legally inadequate analysis of the project’s
traffic impacts; thus, (2) the City’s analyses of the project’s impacts on air quality and
GHG emissions are also inadequate because they relied in part on the City’s deficient
traffic analysis. We find no merit to this claim; thus, we reject UCF’s appeal.
A. No Substantial Evidence Supports a Fair Argument That the MND Undercounted the
“Passenger Car Equivalent”(PCE) Trips the Project Was Expected to Generate
UCF claims “there is a fair argument that the project will have significant
transportation impacts” because the MND “severely understates” the number of vehicles
and vehicle trips the project would generate. As we explain, no substantial evidence
shows that the MND underestimated the number of vehicles or vehicle trips the project
would generate.
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1. Background/ the Traffic Impact Analysis (TIA)
The MND includes a “traffic impact analysis” (the TIA), prepared in
November 2019, which analyzed the project’s impacts on traffic levels of service (LOS).
The MND explained: “Level of service (LOS) is a measure of the quality of operational
conditions within a traffic stream and is generally expressed in terms of such measures as
speed and travel time, freedom to maneuver, traffic interruptions, and comfort and
convenience. Levels range from A to F, with LOS A representing excellent (free-flow)
conditions and LOS F representing extreme congestion.”
The TIA states that its purpose and objective was twofold: (1) to disclose
“potential impacts and mitigation measures per” CEQA, and (2) to “satisfy the
requirements for a TIA established by the San Bernardino County Congestion
Management Plan,” adopted in 1993, and last revised in 2016 (the CMP). The CMP,
administered by the San Bernardino County Transportation Authority (SBCTA), required
“an analysis of off-site intersections . . . at which the project is forecast to add 50 or more
peak hour trips.” The TIA “evaluated 17 intersections and project driveways” and
proposed “circulation improvements” at intersections that were forecast to operate at
unsatisfactory LOS. Based on the TIA, the MND concluded the project would have less
than significant impacts on LOS.
For its LOS analysis, because the project was to be operated as a “parcel delivery”
warehouse, the TIA used “trip generation rates” for the land use classification, “ ‘High-
Cube Parcel Hub Warehouse’ ” from the “Institute of Transportation Engineers’ (ITE)
Trip Generation [manual] (10th Edition) [ITE Code 156].” The MND explained why the
32
TIA selected the parcel hub warehouse classification to calculate the project’s trip
generation rates: “[T]he operations of the proposed Project would be similar to high-
cube parcel hub warehouse facilities, but with some differences . . . . Warehouse/parcel
delivery uses typically entail one merchant/vendor, while parcel hub warehouses such as
Fed Ex and UPS typically work with multiple merchants and vendors. Another
difference is that parcel hub facilities have high truck traffic throughout the day, while
the proposed warehouse/parcel delivery use would have a majority of truck trips
occurring during the off-peak hours. . . . The rates included in the ITE Trip Generation
for Parcel Hub Warehouses are net rates inclusive of passenger car, delivery vans, and
truck traffic. However, to present a conservative analysis, the trip generation rates from
the Trip Generation [manual] has been assumed to be passenger cars and vans, and truck
traffic has been added to the trip generation estimates.”
Based on the parcel hub warehouse classification (ITE Code 156), the TIA
estimated the project would generate a total of 2,583 daily “passenger car equivalent”
(PCE) trips. Based on this estimate, the TIA concluded the project would not
significantly impact LOS or “directly degrade traffic operations below those acceptable
in the City’s general plan.” The TIA noted it “likely overstat[ed] project impacts” on
LOS because the 2,583 daily PCE trip estimate was based on a larger, 276,835-square-
foot warehouse building, when the proposed project, a 201,096-square-foot warehouse
building, would have 75,729 fewer square feet.
Regarding “truck trips” associated with the project, the MND explained: “[A]
total of 25 trucks will arrive to the facility daily [(for a total of 50 truck trips)], of which
33
2% would occur during each of the a.m. and p.m. peak hours [(between 7:00 a.m. and
9:00 a.m. and between 4:00 p.m. and 6:00 p.m.)]. “No more than five trucks would travel
to the site during daytime hours. The peak hour truck trips were converted to passenger
car equivalent (PCEs) using [a multiplier of] 3.0 for 4-axle trucks.” MND also explained:
“Table 24, Project Trip Generation, summarizes the project trip generation. As shown in
Table 24, the project is forecast to generate 202 PCE trips in the a.m. peak hour, 202 PCE
trips in the p.m. peak hour, and 2,583 daily PCE trips. The traffic study conservatively
does not take credit for the existing truck trips.”
2. Analysis/Alternative Trip Generation Rates
UCF first argues that the TIA underestimated the project’s daily PCE trips by
using the wrong “trip generation rate” classification, namely, ITE Code 156, rather than
ITE Code 155, to calculate the project’s daily PCE trips. The record shows, however,
that the City calculated the project’s daily PCE trips using both ITE Code classifications,
and found no significant LOS impacts under either.
In January 2020, during the public comment period on the draft MND, the City of
Claremont wrote a letter to the City, claiming the TIA was underestimating the project’s
traffic impacts by failing to use the trip generation rate for the ITE “fulfillment center”
classification or type of high cube warehouse (ITE Code 155), rather than the ITE “parcel
hub” classification (ITE Code 156). The letter included a memorandum prepared by an
engineering firm, showing that two studies, one by the ITE and another by the Western
Riverside Council of Governments (WRCOG), distinguished between five types of high
34
cube warehouses for purposes of calculating daily PCE trips: transload, short-term
storage, cold storage, fulfillment center, and parcel hub.
The ITE study defined a “fulfillment center” as a warehouse with the following
characteristics: “storage and direct distribution of e-commerce product to end users;
smaller packages and quantities than for other types of [high-cube warehouses]; often
mezzanine levels for product storage and Pick-and-pack area comprises majority of
space, larger parking supply ratio than for all other [high-cube warehouse] types.” In
contrast, the ITE study defined a “parcel hub” warehouse as “transload function for a
parcel delivery company” with the following characteristics: “a regional and local
freight-forwarder facility for time sensitive shipments via air freight and ground (e.g.,
UPS, FedEx, USPS); site often includes truck maintenance, wash, or fueling facilities,
limited or no breakbulk, repack or assembly activities, larger employee parking ratios;
truck drivers often based at facility (i.e., parking may be for both site employees and
drivers, typically in close proximity to airport, often stand-alone[)].”
Based on these operational distinctions between parcel hub and fulfillment center
warehouses, the City of Claremont argued in its letter that the TIA should have used the
fulfillment center classification (ITE Code 155) to estimate the project’s daily PCE trips.
The City of Claremont asserted that the fulfillment center classification would result in
“lower AM peak hour trips but higher PM peak and Daily Vehicle trips for the project.”
(Italics added.) In response, the City “ran the analysis using the trip generation rate for
fulfillment centers” (ITE Code 155) for a 201,906-square-foot warehouse. This analysis
showed that a 201,096-square-foot warehouse would generate slightly higher PCE trips
35
during the p.m. peak hour (276), but would generate total daily PCE trips of 1,953—630
fewer than the 2,583 total daily PCE trips the TIA estimated the project would generate
using the parcel hub classification (ITE Code 156) and assuming a larger, 276,825-
square-foot warehouse.
UCF ignores the City’s supplemental analysis using ITE Code 155. UCF argues,
“the record lacks substantial evidence to prove that the right classifications were used . . .
.” UAOB 58} Again, however, the City calculated the project’s daily PCE trips using
trip generation rates using both the parcel hub (ITE Code 156) and fulfillment center
(ITE Code 155) warehouse classifications, and found no significant impacts on LOS
under either classification. Thus, there is no merit to UCF’s claim that the TIA
underestimated the project’s daily PCE trips by using the wrong ITE Code or warehouse
classification.
3. Analysis/Delivery Vans, Trucks, and Truck Trips
Next, UCF argues that the TIA and the MND did not explain how PCE trips from
delivery vans and trucks associated with the project “factored in” to the TIA’s 2,583 daily
PCE trip estimate. We disagree. First, in response to comments on the MND and TIA,
the City explained how trips from delivery vans “factored in” to the TIA’s 2,583 daily
PCE trip estimate. The City stated: “Van parking spaces are not an indicator of actual
trip generation. Rather, the trip generation rate is appropriately based on building square
footage because building square footage represents the total amount of goods/delivery
capacity of a building.”
36
Second, the MND and the TIA showed how the 50 daily truck trips that the project
was expected to generate “factored in” to the 2,583 daily PCE trip estimate. The MND
and TIA explained that “the rates included” in ITE Code 156 for parcel hub warehouses
“are net rates inclusive of passenger car, delivery vans, and truck traffic. However, to
present a conservative analysis, the trip generation rates” using ITE Code 156 were
“assumed to be passenger cars and vans, and truck traffic has been added to the trip
generation estimate.” (Italics added.)
The TIA (Table 24) showed the warehouse portion of the project was expected to
generate 2,068 daily PCE trips, and that the retail/office portion of the project would
generate an additional 365 daily PCE trips, for a total of 2,433 daily PCE trips (2,068
plus 350 equals 2,433). And, in order to “conservatively” account for the project’s
expected 50 daily trips from 4.0 axle trucks, the TIA multiplied the 50 daily truck trips by
a factor of 3.0, and estimated the project would generate an additional 150 daily PCE
trips based on the 50 truck trips. The TIA then added this 150 daily PCE trip estimate to
the PCE trip estimate of 2,433 that was based on the size of the building (ITE Code 156),
to arrive at the 2,583 daily PCE trip estimate for the project (2,433 plus 150 equals
2,583).
UCF notes the ITE Manual is not included in the record and argues this means
“there is nothing in the record to explain or substantiate how or why “25 daily trucks
translated into 2,583 daily PCE trips.” There is no merit to this claim. Bridge points out
that the ITE Manuel “is a highly technical document with thousands of pages of tables
and charts,” and argues “the traffic engineer’s expert statement providing the ITE trip
37
rates are in the TIA, which is itself record evidence of the data in the ITE manual.” We
agree with the Bridge on this point.
As discussed, the MND and TIA explained why the TIA used the trip generation
rates for “parcel hub” warehouses (ITE Code 156) to calculate the project’s daily PCE
trips. As Bridge points out, “there is no disagreement as to what the ITE rates are, nor
any evidence to dispute the rates provided in the MND for ITE code 156.” In addition,
the public had access to the ITE Manuel through the City, which constructively possessed
it through the traffic engineering firm that prepared the TIA. (See Consolidated Irritation
Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 710-711 [“[A]n agency has
constructive possession of records if it has the right to control the records, either directly
or through another person.”].) Thus, there was no need for the City to include a copy of
the voluminous ITE Manual in the administrative record.
UCF argues the record does not support the City’s methodology for converting
trucks to passenger car equivalents. That is, UCF argues “nothing in the record explains
why the TIA multiplied the project’s anticipated 50 daily truck trips by a factor of 3.0, to
convert those 50 daily truck trips to 150 daily PCE trips. UCF argues “the MND
mentions an ‘axel’ conversion, but again nothing substantiates how or why a 4-axle truck
translates into 3.0 passenger cars for purposes of evaluating transportation impacts.” This
argument, too, disregards the record.
As Bridge points out, the 3.0 PCE conversion ratio for 4.0 axle trucks is the ratio
that the cities San Bernardino County were required to use, in analyzing LOS impacts,
under the CMP, as updated in 2016. The CMP required cities to use the following PCE
38
rates in analyzing impacts on LOS: “For light duty trucks (such as service vehicles,
buses, RV’s and dual rear wheels) use a PCE of 1.5. For medium duty trucks with 3
axles, use a PCE of 2.0. For heavy duty trucks with 4 axles, use a PCE of 3.0.” Thus, the
record fully substantiates the TIA’s use of the 3.0 PCE conversion ratio for 4.0 axle
trucks.
4. Analysis/the “Retail Use” Comparison
In a “retail analysis memorandum,” the TIA analyzed the project’s impacts on
LOS based on the number of daily PCE trips the project would have generated if it were a
276,825-square-foot building developed for retail uses. This analysis used the ITE trip
generation rate for “Shopping Center” (Land Use 820), and showed that a retail use for
the building would generate substantially more daily PCE trips than the project would
generate as a parcel hub warehouse.
The draft MND summarized the findings of the retail analysis memorandum: “[A]
retail use for the same size building would generate 62 trips more than the proposed
warehouse Project in the a.m. peak hour, 498 trips more than the Project in the p.m. peak
hour, and 5,459 more daily trips than the Project. The proposed warehouse project is
anticipated to generate 50 daily truck trips. . . . [A] retail building the same size as the
proposed Project is anticipated to generate approximately 310 daily truck trips.
Therefore, a retail building would generate 260 more truck trips per day than the
proposed Project.”
UCF claims the City’s comparative “retail analysis” of the daily PCE trips that
would be generated from a same-size building developed for retail uses “set up an
39
illusory comparison of transportation impacts that is impermissible under CEQA” We
disagree. UCF relies on the settled proposition that, “[a]n approach using hypothetical
allowable conditions as the baseline [to describe the physical environmental conditions in
the vicinity of the project as they exist at the time environmental analysis is commenced
(CEQA Guidelines, § 15125, subd. (a))] results in ‘illusory’ comparisons that ‘can only
mislead the public as to the reality of the impacts and subvert full consideration of the
actual environmental impacts,’ a result at direct odds with CEQA’s intent.”
(Communities for a Better Environment v. South Coast Air Quality Management Dist.
(2010) 48 Cal.4th 310, 322, italics added.) But the City did not use the hypothetical retail
use of the project as a baseline for assessing any of the project’s environmental impacts.
(Id. at pp. 320-322.) Although, as UCF argues, the retail use comparison may have
“made the project’s trip generation look more attractive or favorable by comparison” to a
retail use, the retail analysis memorandum was not illusory or misleading “as to the
reality” of the project’s impacts and was, therefore, not at odds with CEQA. (Id. at
p. 322; see CEQA Guidelines, § 15126.6 [EIR required to study reasonable range of
project alternatives].)
B. UCF’s Transportation Impact Claims Are Either Moot Or Unsupported
In the trial court, UCF argued that the City’s traffic impact analysis, the TIA, was
flawed because it “neglecte[d] to consider the traffic impacts implied by 1,104 van
parking stalls and 337 automobile parking spaces.” The trial court found this traffic
impact claim was moot because it was based on LOS. (Citizens for Positive Growth &
Preservation, supra, 43 Cal.App.5th at pp. 625-626 (Citizens); § 21009, subd. (b)(2).)
40
UCF claims its “transportation-related claims are not moot” and Citizens is
distinguishable because UCF’s traffic and transportation impact claims are based on
“vehicle miles traveled” (VMT), not LOS, and the City abused its discretion in using
“defunct LOS methodology to evaluate transportation impacts.” We address these claims
in turn.
1. UCF’s Traffic Impact Claims Are Moot
Section 21099 was enacted effective January 1, 2014. (Stats. 2013, ch. 386 (S.B.
743), § 5.) It directed the OPR to develop CEQA guidelines “establishing criteria for
determining the significance of transportation impacts of projects within transit priority
areas.” (§ 21099, subd. (b)(1).) It states: “Upon certification of the guidelines by the
Secretary of the Natural Resources Agency pursuant to this section, automobile delay, as
described solely by level of service or similar measures of vehicular capacity or traffic
congestion, shall not be considered a significant impact on the environment
. . . .” (§ 21009, subd. (b)(2).)
In 2018, the Secretary of the Natural Resources Agency certified Guidelines
section 15064.3 (Determining the Significance of Transportation Impacts). (Citizens for
Positive Growth & Preservation, supra, 43 Cal.App.5th at pp. 625-626; § 21009,
subd. (b)(2).) Thereafter, on December 28, 2018, the Office of Administrative Law
approved the guideline, and the guideline became operative. (Citizens, at pp. 625-626.)
By its terms, the guideline is prospective only; although agencies could elect to be
“immediately” governed by its provisions, the guideline did not apply “statewide” until
July 1, 2020. (CEQA Guidelines, §§ 15007, 15064.3, subd. (c).)
41
Here, the City did not elect to be governed CEQA Guidelines section 15064
before the guideline went into effect statewide on July 1, 2020. Thus, the guideline was
not binding on the City until July 1, 2020. (CEQA Guidelines, § 15064.3, subd. (c).)
Guidelines section 15064.3 “describes specific considerations for evaluating a
project’s transportation impacts” and provides that, “[g]enerally, vehicle miles traveled
[VMT] is the most appropriate measure of transportation impacts.” (CEQA Guidelines,
§ 15064.3, subd. (a).) The guideline defines VMT as “the amount and distance of
automobile travel attributable to a project.” (Ibid.) “Other relevant considerations” in
determining the significance of a project’s transportation impacts “may include the
effects of the project on transit and non-motorized travel.” (Ibid.) The guideline
expressly states, however, that, except for road capacity projects, “a project’s effect on
automobile delay shall not constitute a significant environmental impact.” (Ibid.)
In Citizens, the petitioner challenged the validity, under CEQA, of the City of
Sacramento’s 2035 General Plan and EIR for the general plan, claiming, in relevant part,
that the EIR did not adequately analyze and mitigate the general plan’s impacts on traffic
congestion. (Citizens, supra, 43 Cal.App.5th at pp. 615, 625.) Citizens held that section
21099, subdivision (b)(2), and its implementing regulation, CEQA Guidelines section
15064.3, rendered the traffic impacts argument moot. (Citizens, at pp. 625-626.)
Applying the maxim that, in mandamus proceedings, “ ‘ the law to be applied is
that which is current at the time of judgment in the appellate court,’ ” Citizens reasoned
that, in the words of section 21009, subdivision (b)(2), the law in effect at the time the
appellate court judgment was issued in Citizens, “ ‘automobile delay, as described solely
42
by level of service or similar measures of vehicular capacity or traffic congestion’ ” could
no longer be considered a significant environmental impact. (Citizens, supra,
43 Cal.App.5th at pp. 625-626, quoting § 21009, subd. (b)(2).) Thus, the petitioner’s
claim was moot because it was based on “traffic congestion” or “LOS (i.e., automobile
delay)” and, under current law, section 21009, subdivision (b)(2), the 2035 General
Plan’s impacts on LOS could no longer be considered significant. (Citizens, at p. 626;
accord, Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021)
73 Cal.App.5th 985, 1021 [“Because LOS-based traffic analysis is no longer a
consideration to determine if a project’s [transportation] impact is significant, the City
would be under no obligation to conduct a LOS-based analysis on remand.”].)
Similarly here, UCF’s traffic/transportation impacts claim is moot because it is
based on traffic congestion or LOS. In UCF’s words, UCF’s claim is based “on an
under-counting of vehicles and vehicle trips.” (Italics added.) This is indistinguishable
from “automobile delay, as described solely by level of service traffic [LOS] or similar
measures of vehicular capacity of traffic congestion”—the type of traffic impact that has
not been considered significant since Guideline section 15064.3 became operative, and
implemented section 21009, subdivision (b)(2), on December 28, 2018. (See Citizens,
supra, 43 Cal.App.5th at pp. 625-626; Ocean Street, supra, 73 Cal.App.5th at p. 1021.)
Because LOS impacts are no longer considered significant, on remand, the City
would not be required to conduct a new LOS analysis. (Citizens, supra, 43 Cal.App.5th
at p. 626; Ocean Street, supra, 73 Cal.App.5th at p. 1021.) Thus, a court cannot grant
UCF effective relief on its LOS-related traffic impact claims, as the claims are not viable
43
under current law. (People v. Dunley (2016) 247 Cal.App.4th 1438, 1445 [“A case
becomes moot when a court ruling can have no practical effect or cannot provide the
parties with effective relief.”].)
UCF argues that its traffic impact claim—that the City “under-counted the number
of vehicles and vehicle trips” the project was expected to generate—is not moot because
it is not based on traffic congestion or LOS (automobile delay); rather, it is based on
VMT. But as Bridge points out, UCF’s argument on appeal misrepresents UCF’s
argument in the trial court. In its opening brief in the trial court, UCF argued “the traffic
study [the TIA] inadequately captures the negative impact of traffic and levels of
congestion associated with the [project],” and that, “residents’ first-person observations
of the congested traffic situation around the project site” required the City to prepare an
EIR. Again, UCF’s traffic impact claims are moot because they assert that the City
inadequately assessed the project’s impacts on LOS.
UCF counters that “[t]he number of vehicles attributable to the Project has a direct
correlation with VMT; the more vehicles there are, the more vehicle miles traveled there
are. . . . There is not a similar correlation between number of vehicles and automobile
delay . . . . Citizens does not apply here because automobile delay was not the impact for
which substantial evidence of a fair argument was presented.” Again, however, the
record does not support this claim. Because UCF’s traffic impacts claim in the trial
court, and in this appeal, is based on LOS, the claim is moot by operation of law.
(Citizens, supra, 43 Cal.App.5th at pp. 625-626.)
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2. The City Conducted a VMT Analysis, and It Was Not Challenged
UCF claims the City abused its discretion in performing a “defunct LOS analysis”
of the project’s traffic and transportation impacts, and the City should have instead
performed a VMT analysis of the project’s transportation impacts. This claim fails for
several reasons. First, during the public review period, the City did, in fact, perform a
VMT analysis “for information purposes,” which found the project would have less than
significant transportation impacts “were VMT to be adopted as a threshold.”
The VMT analysis concluded that the “per capita VMT” for the project was
“anticipated to be 6.5% less than the per capita VMT for employees in Upland, and
12.32% lower than [the per capita VMT for] the County of San Bernardino.” Using a
VMT significance threshold of “ ‘no more than existing’ ”—“similar to what several
cities in Riverside County” had adopted “following WRCOG guidance”—the VMT
analysis concluded the project “would have a less than significant impact” on
transportation.
The VMT analysis states that it was prepared “consistent with CEQA Guidelines
section 15064.3 and the Technical Advisory published by OPR . . . for informational
purposes.” (Italics added.) The VMT analysis was released to the public on February 12,
2020, as part the agenda packet for a City planning commission meeting, before the City
adopted the MND on April 1, 2020.
In its opening brief in this appeal, UCF ignores the VMT analysis and assumes the
City did not prepare a VMT analysis. In its respondent’s brief, Bridge correctly points
out that UCF failed to exhaust its administrative remedies concerning the VMT analysis.
45
No one, including UCF, challenged the VMT analysis by commenting on it during the
public comment period on the project. “ ‘Exhaustion of administrative remedies is a
jurisdictional prerequisite to maintenance of a CEQA action.’ ” (California Native Plant
Society v. City of Rancho Cordova (2009) 172 CalApp.4th 603, 615.) “ ‘The exhaustion
of administrative remedies doctrine “bars the pursuit of a judicial remedy by a person to
whom administrative action was available for the purpose of enforcing the right [the
person] seeks to assert in court . . . .” ’ ” (Clews Land & Livestock, LLC v. City of San
Diego (2017) 19 Cal.App.5th 161, 184.) Thus, as Bridge argues, UCF failed to exhaust
its administrative remedies on the VMT analysis, and, as a result, UCF cannot challenge
the VMT analysis in this mandamus proceeding.
As Bridge argues, UCF’ s refusal to acknowledge the VMT analysis “defeats all”
of UCF’s arguments regarding the MND’s analysis of the project’s transportation
impacts. Indeed, the City’s preparation of the VMT analysis defeats UCF’s argument
that the City abused its discretion in using LOS as the means of measuring the project’s
impacts on traffic and transportation. As Bridge points out, the City was required to
analyze the project’s impacts on LOS to comply with the CMP, but the City was not
required to prepare the VMT analysis in order to comply with CEQA and Guidelines
section 15064.3.4
4 Although the City completed a VMT analysis of the project’s transportation impacts in response to comments on the draft MND, the City was not required to perform a VMT analysis and would not be required to perform a new or modified VMT analysis on remand. (See Citizens, supra, 43 Cal.App.5th at p. 626.) Guidelines section 15064.3 generally requires agencies to perform VMT analyses in evaluating a project’s [footnote continued on next page]
46
Lastly, even if UCF’s traffic impacts claim is based on VMT, rather than LOS,
and is therefore not moot, the claim lacks merit because no substantial evidence supports
it. For the reasons explained, UCF has not shown that the City, in the MND, the TIA, or
the VMT analysis, undercounted the “vehicles and vehicle trips” daily PCE trips
attributable to the project. More broadly, UCF has pointed to no substantial evidence
supporting a fair argument that the project could have significant traffic or transportation
impacts, based on a VMT methodology or any other analysis. Thus, there is no merit to
UCF’s claim that the project may have significant transportation impacts.
D. UCF’s Air Traffic and GHG Emissions Claims Also Lack Merit
UCF’s claim that the project could have significant impacts on air quality and
GHG emissions is based solely on UCF’s unsupported claim that the project could have
significant impacts on transportation. Because there is no merit to UCF’s claim that the
project could have significant transportation impacts, there no merit to UCF’s claim that
transportation impacts. (Guidelines §15064.3, subd. (a).) But because the guideline is prospective, as described in Guidelines section 15007 (id. at subd. (c)), the guideline does not apply to “ ‘steps in the CEQA process’ ” that were “undertaken” before the agency became governed by the guideline (IBC Business Owners for Sensible Development v. City of Irvine (2023) 88 Cal.App.5th 100, 122-125 (IBC) [“[The City did not have to comply with the VMT Guideline because the addendum process had already been ‘undertaken’ by the time [Guideline § 15064.3] became applicable”]; Citizens, at p. 626 [“[B]ecause CEQA Guidelines section 15064.3 is prospective and does not presently require the City to use the criteria set forth therein, Citizens’ argument that the City failed to analyze the 2035 General Plan’s traffic impacts under the [VMT] criteria in the regulation fails . . . .”].) Here, the City undertook (and completed) the process of preparing the TIA before Guidelines section 15064.3 went into effect statewide, and became binding on the City, on July 1, 2020. (Guidelines, § 15064.3, subd. (c).) Thus, the City was not required to perform a VMT analysis of the project’s transportation impacts, and the City would not be required to perform a new or modified VMT analysis on remand. (IBC, at pp. 122-125; Citizens, at p. 626.)
47
the project could also, by extension, have significant impacts on air quality and GHG
emissions.
VI. DISPOSITION
The judgment is reversed. The matter is remanded to the superior court with
directions to enter a new judgment denying UCF’s writ petition in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
MILLER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the City's finding that the project would not have significant impacts on greenhouse gas (GHG) emissions, as the City properly exercised its discretion to use a 3,000 MTCO2e/yr. threshold and the project's emissions fell below that level. Consequently, the court reversed the trial court's judgment that had set aside the project's environmental approvals.
Issues
Whether substantial evidence supports the City's use of a 3,000 MTCO2e/yr. threshold for measuring the significance of the project's GHG emissions.
Whether the City's failure to conduct a vehicle miles traveled (VMT) analysis rendered the environmental review legally insufficient.
Whether the trial court erred in setting aside the City's mitigated negative declaration (MND) and project approvals.
Disposition. reversed
Quotations verified verbatim against the opinion
“We agree with Bridge that substantial evidence supports the City’s finding that the project would not have significant impacts on GHG emissions.”
“Specifically, substantial evidence both supports the City’s use of the 3,000 threshold for measuring the significance of the project’s GHG emissions and shows that the project’s GHG emissions would be below the 3,000 threshold.”
“We find no merit to UCF’s appeal. Thus, we reverse the judgment and remand the matter with directions to enter judgment in favor of the City and Bridge on UCF’s petition and complaint.”