Opinion
B329274
05-01-2024
PROTECT OUR GLENDALE, Petitioner and Appellant, v. CITY OF GLENDALE et al., Respondents.
Naira Soghbatyan for Petitioner and Appellant. Cox, Castle &Nicholson, Michael H. Zischke, Lisa M. Patricio, Morgan L. Gallagher, Edward G. Schloss; City of Glendale, Michael J. Garcia, Gillian van Muyden, Yvette Neukian for Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 21STCP01247 Mitchell L. Beckloff, Judge. Affirmed.
Naira Soghbatyan for Petitioner and Appellant. Cox, Castle &Nicholson, Michael H. Zischke, Lisa M.
Patricio, Morgan L. Gallagher, Edward G. Schloss; City of Glendale, Michael J. Garcia, Gillian van Muyden, Yvette Neukian for Respondents.
CHANEY, J.
The Glendale City Council and Glendale's Community Development Department (collectively, Respondents or the City) formulated and approved a 25-year plan to improve the pedestrian experience within the City of Glendale, declaring that with implementation of two mitigation measures relating to transportation, the plan would have no significant environmental impact. Protect Our Glendale, a non-profit unincorporated association, petitioned the superior court for a writ of mandate directing the City to vacate its approval of the plan and prepare an environmental impact report (EIR) prior to any future approvals. Protect Our Glendale argued that in approving the pedestrian plan, the City failed to comply with Public Resources Code section 21000, et seq., the California Environmental Quality Act (CEQA), and the plan itself violated Vehicle Code section 21000.
Undesignated statutory references will be to the Public Resources Code.
The trial court denied the petition, finding that Protect Our Glendale failed to establish the City violated CEQA, and the pedestrian plan did not violate the Vehicle Code. We agree and affirm.
BACKGROUND
A. The Project
On March 23, 2021, the City approved the "Glendale Citywide Pedestrian Plan (the Plan or Project)," which it described as "a comprehensive, centralized, and coordinated approach to improving pedestrian infrastructure, safety, and demand in Glendale."
The Plan proposed potential permanent road modifications to be considered in the next 25 years, including lane removals, curb bulb-outs, greenways, bicycle lanes, removal of approximately four parking spaces at one intersection, replacement of one traffic lane with parking spaces, and new street designations as Pedestrian Priority Streets.
A greenway is a corridor of undeveloped land preserved for recreational use. A bulb-out is a curb expansion which extends the sidewalk into the parking lane, for example to narrow the roadway to shorten the crossing distance for pedestrians or to facilitate transit boarding.
The Plan concerned 16 traffic "corridors," basically intersections. The proposed changes were:
(1) Signage-add or remove crosswalks, repaint all crosswalks from parallelograms to "continental" stripes, shift crosswalks 30 feet up or down the street, shift bus stop locations;
(2) Refuge Islands-construct median refuge islands in the middle of the street which intersect crosswalks;
(3) Signals-change signal timing to allow for pedestrian head starts, replace "circular flashing beacons" with "rectangular rapid flashing beacons," add protected left-turn arrows;
(4) Turn Pockets-"consider" removing left-turn or rightturn pockets;
(5) Sidewalks-widen sidewalks, fill in a "slip" lane (rightturn lane separated from the main roadway by a refuge island) with landscaping; remove (approximately four) parking spaces near two intersection corners and replace them with curb extensions;
(6) Lane Replacements-replace traffic lanes with bicycle lanes, diagonal parking spaces, bus-stop lanes and bus stops; install a floating bus stop (a dedicated bus lane separated from traffic by a refuge island);
(7) Curb Ramps and Speed Bumps-reconstruct a curb ramp; and add speed bumps.
The biggest changes involved turning six-lane streets to four lanes by widening curbs and/or painting bike and bus lanes and diagonal parking spaces.
B. Environmental Impact
1. Study
The City examined 21 areas of potential environmental impact: aesthetics, biological resources, geology/soils, hydrology/water quality, noise, recreation, utilities/service systems, agriculture and forest resources, cultural resources, greenhouse gas emissions, land use/planning, population/housing, transportation, wildfire, air quality, energy, hazards/hazardous materials, mineral resources, public services, tribal cultural resources, and "mandatory findings of significance."
As to each area, the City posed between two and seven questions. For example, the City examined whether the project would obstruct an existing mitigation measure or result in a cumulative impact in connection with other projects.
As to each question, the City identified whether the project would have a "potentially significant impact," a "less than significant impact with mitigation incorporated," a "less than significant impact" or "no impact," and gave a rationale for the selection.
Examples of the rationales were: (1) Many improvements-e.g., curbs, gutters, rights-of-way, signalizations-would replace existing improvements, resulting in no net impact; (2) "An increase in walking as an alternative to use of the automobile could . . . reduce overall vehicular emissions in the City and improve regional air quality"; and (3) the City's standard construction-period emissions and dust control measures, which were consistent with SCAQMD rules, would reduce air quality impacts from minor ground disturbances during construction to less than significant levels.
a. Air Quality and Greenhouse Gas Emissions
Regarding potential impacts to air quality and greenhouse gas emissions, the City determined that impacts would be less than significant, and no mitigation was required.
b. Transportation
The City assessed four potential transportation areas of concern: Would the project: (1) Conflict with the City's traffic plan? (2) Conflict with CEQA Guidelines section 15064.3? (3) Substantially increase hazards? Or (4) Result in inadequate emergency access?
The City determined that no significant environmental impact could occur with respect to a conflict with the City's traffic plan, increased hazards or emergency access. However, there was a concern that the Plan could conflict with CEQA Guidelines section 15064.3.
CEQA Guidelines section 15064.3 was modified in 2018 to provide that in order to determine the significance of a project's transportation impacts, an agency must measure, either quantitatively or qualitatively, the "amount and distance of automobile travel attributable to a project," or the "vehicle miles traveled," instead of the "level of service" impacted by the project. (CEQA Guidelines, § 15064.3(a).) The Guideline provided that "the effects of the project on transit and non-motorized travel" were relevant to measuring vehicle miles traveled, but "a project's effect on automobile delay" would no longer constitute a significant environmental impact. (Ibid.)
The Guideline provided that "[v]ehicle miles traveled exceeding an applicable threshold of significance may indicate a significant impact." (CEQA Guidelines, § 15064.3(b)(1).) The Guideline provided that agencies "have discretion to determine the appropriate measure of transportation impact consistent with CEQA." (CEQA Guidelines, § 15064.3(b)(2).)
No Plan implementation would generate new vehicle trips or increase the existing traffic load, the City explained, but components of the Plan such as lane removal and bulb-outs could reduce the vehicle capacity of an intersection, and signal timing adjustments favoring pedestrians could slow down traffic, which could result in "queuing that could affect traffic operations at adjacent intersections," for example by prompting drivers to make detours.
The City stated it was "currently in the process of developing [vehicle miles traveled] standards and [would] perform a [vehicle miles traveled] analysis, as appropriate, where a Plan component [was] authorized for implementation."
The City found that any vehicle miles traveled impact could be reduced to insignificant levels through implementation of a Mitigation Monitoring and Reporting Program. The Mitigation Monitoring and Reporting Program comprised two mitigation measures, TRANS-1 and TRANS-2.
TRANS-1 provided that prior to eliminating vehicle travel lanes, the City "shall" prepare a vehicle miles traveled analysis, and if applicable a level of service and queuing analysis, to determine whether the project would cause a significant impact according to city thresholds or would result in queuing that could affect traffic operations at adjacent intersections.
If the proposed improvement would result in a significant impact, TRANS-1 provided that the City "shall" either modify the project to bring the impact within city thresholds or make findings that beneficial impacts reduced the adverse impact to "a less-than-significant level."
In TRANS-2, the City committed to ensure that bulb-outs would not extend beyond the parking lane into through lanes of any roadway far enough to eliminate or narrow travel lanes below minimum widths as described in the City's "Circulation Element."
If eliminating or narrowing through travel lanes was necessary, the City committed to preparing a vehicle miles traveled and/or level of service or queuing analysis to determine whether the project would cause a significant impact according to city thresholds or would result in queuing that could affect traffic operations at adjacent intersections.
If the proposed bulb-out would result in a significant impact, TRANS-2 provided that the City "shall" either modify the bulb-out to bring the impact within city thresholds or make findings that beneficial impacts reduced the adverse impact to "a less-than-significant level."
The City found that all of the Plan's other proposed improvements, for example creation of greenways and signage changes, would have no significant environmental impact.
On April 22, 2021, the City filed a Notice of Determination with the Los Angeles County Clerk, advising that the City had approved the Plan and asserting in a Mitigated Negative Declaration (MND) that with implementation of the Mitigation Monitoring and Reporting Program (i.e., TRANS-1 and TRANS-2), the Plan would have no significant effect on the environment.
c. Parking
The City did not study the impact of adding or removing parking spaces.
C. Administrative Challenge
On March 23, 2021, the day the City approved the Plan, Naira Soghbatyan, Protect Our Glendale's attorney, emailed a 15-page letter to the Glendale City Council setting forth her own objections to the Plan. (It is not clear on whose behalf Soghbatyan wrote the letter, as in it she stated both that her firm represented Glendale residents and that she "strongly urge[d]" the City to reject the Plan.)
1. Procedural Challenge
Soghbatyan mainly criticized the procedure followed by the City to approve the Plan and the lack of evidence supporting it. She argued: (1) The Plan description was so misleading as to amount to ineffective notice; (2) the project description was silent on various concepts and otherwise incomplete; (3) the Plan disregarded "the changed reality and the dangers revealed by the Covid-19 pandemic"; and (4) the MND was based on circular and otherwise unsupported reasoning.
Soghbatyan argued that the City's finding that the Plan would cause no adverse greenhouse gas effect assumed that increased bus use would decrease emissions by removing cars from traffic. This assumption was flawed, she argued, because in the Covid era, buses would be underutilized. She supported the argument with a 2010 article written by Thomas Rubin, a Southern California Rapid Transit District official, who stated that bus transit did not reduce greenhouse gas emissions over car transit because not enough people used buses.
Soghbatyan argued that the City's reliance on the beneficial effects of transit-use, biking, and walking to reduce transportation impacts was misplaced because people would be more at risk of contracting Covid if they took buses, and bicycling and walking could be hazardous. She supported the argument with a link to a 2020 homeowner's association objection to a City of Los Angeles EIR concerning the construction of two skyscrapers in Hollywood. She also supported the argument with links to CDC and New York State Department of Health Web sites describing dangers to pedestrians, both of which, ironically, stated that measures such as wider sidewalks and refuge islands like those proposed by the City would increase pedestrian safety.
Pedestrian Safety | Transportation Safety | Injury Center | CDC; <https://www.cdc.gov/transportationsafety/pedestrian_safety/inde x.html> (as of April 30, 2024). Pedestrian Safety: It's No Accident (ny.gov); <https://www.health.ny.gov/prevention/injury_prevention/pedestr ians.htm> (as of April 30, 2024).
2. Substantive Challenges
Substantively, Soghbatyan argued the Plan would result in adverse environmental impacts in the areas of transportation, air pollution, greenhouse gases, historical resources, aesthetics, public services, land use, and mandatory findings, but the only evidence she offered in support was a four-time reference to "common sense."
Soghbatyan also argued the Plan violated the Vehicle Code, and the Mitigation Monitoring Program violated CEQA by deferring mitigation.
D. Mandate Proceedings
On April 22, 2021, Protect Our Glendale, represented by Soghbatyan, instituted these writ proceedings, seeking a traditional writ of mandate compelling the City to vacate its approval of the plan and prepare an EIR prior to any future approval. Protect Our Glendale alleged the City failed to comply with CEQA by summarily dismissing all environmental impacts relating to air quality, greenhouse gas emissions, land use, public services and human beings, and by proposing illusory transportation mitigation measures and improperly deferring those measures.
Protect Our Glendale also alleged two violations of the Vehicle Code. It alleged that adoption of the Plan violated subdivision (a)(1) of section 21011 of the Vehicle Code, which governs street closures, by improperly closing off streets, and subdivision (g) of section 21011, which mandates that street ingress/egress restrictions be consistent with the circulation element of a city's general plan, by restricting access to streets in a manner inconsistent with its general plan.
On February 14, 2023, the trial court denied Protect Our Glendale's petition, finding the City's proposed mitigation measures were permissible and adequate, and the Plan did not violate the Vehicle Code.
Protect Our Glendale appeals.
DISCUSSION
A. CEQA
Protect Our Glendale contends there is substantial evidence of a fair argument that the Plan may have individual and cumulative impacts to transportation, air quality, greenhouse gas emissions, land use, public services and human beings. Protect Our Glendale argues that in its MND the City summarily dismissed all impacts except for transportation, for which it proposed illusory mitigation measures which it then improperly deferred.
1. Applicable Law
CEQA "establishes a comprehensive scheme to provide long-term protection to the environment. It prescribes review procedures a public agency must follow before approving or carrying out certain projects." (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1092.)
CEQA Guidelines are regulations adopted to implement CEQA, codified at California Code of Regulations, title 14, chapter 3, sections 15000-15387. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 792, fn. 11.)
"Under CEQA and its implementing guidelines, an agency generally conducts an initial study to determine 'if the project may have a significant effect on the environment.'" (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 945 (Friends of College of San Mateo Gardens); CEQA Guidelines, § 15063.)
If the initial study reveals no substantial evidence that the project may have a significant environmental effect, the agency must prepare a negative declaration to that effect. (CEQA Guidelines, §§ 15063(b)(2), 15070; San Bernardino Valley Audubon Soc. v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 390.)
"If there is substantial evidence that the project may have a significant effect on the environment," then the agency must prepare an EIR before approving the project. (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 945.)
However, and as happened here, if significant environmental impacts are identified but project revisions will avoid or mitigate them such that clearly no significant effect on the environment would occur, the agency may prepare an MND. (Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 776-777 (Parker).)
Such mitigation measures are themselves subject to challenge, however, on the ground that they are insufficient to mitigate the project's impacts. (Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.4th 665, 693.) If the lead agency is presented with a fair argument that a project may have a significant effect on the environment notwithstanding mitigation measures, and that argument is supported by substantial evidence, the agency must prepare an EIR. (CEQA Guidelines, § 15064(f)(1).)
A party seeking mandamus bears the burden to demonstrate that substantial record evidence supports any proffered fair argument that the project will have a significant adverse impact. (McCann v. City of San Diego (2021) 70 Cal.App.5th 51, 87.) If the party seeking mandamus fails to meet this burden, the MND must be upheld. (Parker, supra, 222 Cal.App.4th at p. 786.)
2. Standard of Review
We review compliance with CEQA for a prejudicial abuse of discretion. Prejudicial abuse of discretion exists" 'if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.'" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.)
We determine de novo whether an agency has employed correct procedures," 'scrupulously enforc[ing] all legislatively mandated CEQA requirements.'" (California Coastkeeper Alliance v. State Lands Comm'n (2021) 64 Cal.App.5th 36, 55.)
" 'In reviewing the adoption of a[ negative declaration], our task is to determine whether there is substantial evidence in the record supporting a fair argument that the Project will significantly impact the environment; if there is, it was an abuse of discretion not to require an EIR. [Citation.]" 'Whether a fair argument can be made is to be determined by examining the entire record.'" [Citation.]' [Citation.] 'Although our review is de novo and nondeferential, we must give the lead agency the benefit of the doubt on any legitimate, disputed issues of credibility.'" (Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 684.)
To determine whether substantial evidence supports a fair argument that a proposed project may have a significant effect on the environment," 'deference to the agency's determination is not appropriate and its decision not to require an EIR can be upheld only when there is no credible evidence to the contrary.'" (Parker, supra, 222 Cal.App.4th at p. 778.) In this sense, whether the lead agency's record contains substantial evidence supporting a fair argument is treated as a question of law. (See, e.g., Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 289.)
Substantial evidence includes "fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact." (§ 21080, subd. (e)(1).) Argument, speculation, and unsubstantiated opinion or narrative do not constitute substantial evidence. (§ 21080, subd. (e)(2).)
3. Application a. Burden of Proof
As stated above, a lead agency must prepare an EIR if there is a fair argument, supported by substantial evidence, that a project may have a significant effect on the environment notwithstanding mitigation measures. (CEQA Guidelines, § 15064(f)(1).) As the appellant, Protect Our Glendale bears the burden of identifying in the record substantial evidence of a fair argument that the Plan may have a significant effect on the environment that would not be mitigated. (See Clews Land &Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 193.)
Protect Our Glendale contends the project may have significant environmental effects in the areas of transportation, air quality, greenhouse gas emissions, land use, and mandatory findings. However, it identifies no evidence supporting its contentions. Instead, it relies exclusively on Soghbatyan's letter of March 23, 2021, which itself adduced no evidence other than "common sense" to support her substantive objections to the Plan.
Protect Our Glendale also criticizes the City's procedure in adopting the MND, specifically the lack of evidence supporting it, the validity of its assumptions and wisdom of its goals, and the adequacy of its explanations. However, flaws in adopting an MND do not constitute substantial evidence of an adverse environmental impact.
To be sure, an agency will "not be allowed to hide behind its own failure to gather relevant data.... CEQA places the burden of environmental investigation on the government rather than the public. If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences." (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311; see Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 197 [fact that initial study checklist was incomplete and marked every impact "no" supported fair argument that project would have significant environmental effects].)
"However, the ultimate issue is not the validity of the initial study, but rather the validity of the lead agency's adoption of a negative declaration. Even if the initial study fails to cite evidentiary support for its findings, 'it remains the appellant's burden to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.' [Citation.] 'An absence of evidence in the record on a particular issue does not automatically invalidate a negative declaration. "The lack of study is hardly evidence that there will be a significant impact." '" (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1379; see Aptos Council v. County of Santa Cruz, supra, 10 Cal.App.5th at p. 295 ["Pointing to a lack of evidence in the administrative record does not by itself constitute substantial evidence of a significant environmental impact"].)
We divide the discussion below into three categories: (1) Non-transportation impacts (i.e., relating to air quality and greenhouse gas emissions); (2) unmitigated transportation impacts; and (3) mitigated transportation impacts. The City found the Plan would cause no significant non-transportation impacts and no significant transportation impacts from selected improvements such as lane redesignations and sign changes. The City found that significant transportation impacts could arise from other improvements, specifically lane removals and the installation of bulb-outs, but those impacts would be mitigated to insignificance by TRANS-1 and -2.
For reasons we will explain, Protect Our Glendale has not made a sufficient showing as to any of these three categories. The Plan concerns long-term goals, not implementation, and contemplates only modest changes to already-developed land. The record does not reflect any fair argument that the project may have a significant effect on the environment that would not be mitigated.
b. Non-Transportation Impacts: Air Quality, Greenhouse Gas Emissions, Land Use, Public Services, Human Beings, and Mandatory Findings
As noted, the City examined 21 areas of potential environmental impact: aesthetics, biological resources, geology/soils, hydrology/water quality, noise, recreation, utilities/service systems, agriculture and forest resources, cultural resources, greenhouse gas emissions, land use/planning, population/housing, transportation, wildfire, air quality, energy, hazards/hazardous materials, mineral resources, public services, tribal cultural resources, and "mandatory findings of significance."
It found the Plan would cause no significant environmental impact as to any area except one-transportation.
Protect Our Glendale contends that in addition to transportation, there is substantial evidence of a fair argument that the Plan may have individual and cumulative impacts on air quality, greenhouse gas emissions, land use, public services and human beings. It argues the City failed to make certain mandatory findings and summarily dismissed these impacts in its MND.
The record is to the contrary.
The Plan recommends improvements (e.g., curb extensions, median islands, crosswalk markings, bulb-outs and lane modifications) which do not themselves generate more vehicle trips or congestion that would substantially increase vehicular pollutants or greenhouse gas emissions. The Plan is designed to make walking more attractive, and thus reduce driving, causing reduced emissions and improved air quality. These facts supported the City's conclusion that the Plan will result in less than significant impacts on air quality, greenhouse gas emissions, land use, public services, human beings or any other category as to which mandatory findings are required.
Protect Our Glendale identifies no evidence supporting its contentions. Instead, it relies on Soghbatyan's letter of March 23, 2021, which itself adduced no evidence other than "common sense." Instead, Protect Our Glendale mainly criticizes the City's procedure in adopting its MND, specifically the lack of evidence supporting it. But even if Protect Our Glendale is correct that the Plan will not result in increased biking, walking and transit use, no evidence in the record suggests the Plan itself will have any adverse non-transportation environmental impact.
c. Unmitigated Transportation Impacts
The City found no improvements except lane removals and installation of bulb-outs would result in a cognizable environmental transportation impact. Therefore, it found no mitigation was needed as to proposed non-lane removal, nonbulb-out improvements.
Protect Our Glendale argues that to the contrary, the Plan's proposed non-lane removal and non-bulb-out improvements will have adverse environmental impacts relating to transportation.
To support its argument, Protect Our Glendale must first identify a transportation impact resulting from a particular nonlane removal or non-bulb-out improvement and then adduce evidence that the impact will occur. It fails to do either.
1. Impact
To identify a transportation impact, Protect Our Glendale argues it is reasonably foreseeable that the Plan's proposed nonlane removal and non-bulb-out improvements, including installation of greenways and bicycle ways, may lead to "traffic congestion and related impacts."
Because the effect of traffic congestion on automobile delay is no longer a cognizable environmental impact under CEQA (Pub. Resources Code, § 21099, subd. (b)(2)), Protect Our Glendale presumably means that increased traffic congestion will cause increased vehicle miles traveled by inducing drivers to make detours. However, with one exception, it fails to explain how any non-lane removal or non-bulb-out improvement, for example installation of greenways or bicycle ways, could increase congestion.
That exception concerns parking. The Plan proposes to remove approximately four parking spaces near one intersection corner and replace them with curb extensions. It also proposes to replace one traffic lane with diagonal parking spaces. Protect Our Glendale argues that reducing parking will foreseeably cause cars to drive around, thus increasing vehicle miles traveled and causing a corresponding environmental impact. Citing Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1053-1054 (Taxpayers). It argues the City failed to study this impact.
2. Evidence
In addition to identifying no transportation impacts, Protect Our Glendale identifies no evidence supporting an impact of any sort. Its citations to the record are generally to the proposed improvements themselves, which it concludes without explanation will foreseeably have transportation impacts, apparently as a matter of common sense.
(a). Street Designation Guidelines and Traffic Studies
For example, the Plan proposed to redesignate streets as pedestrian priority streets after "[d]evelop[ing] design guidelines for Pedestrian Priority Streets, including sidewalk and crossing standards (e.g., the limited curb cuts, high-visibility and decorative crossings) and public realm improvements (e.g., landscaping, trees, and amenities) that are required along Pedestrian Priority Streets." It also acknowledged that traffic studies would be required to assess potential impacts of all proposed redesignations.
Protect Our Glendale argues the Plan fails to identify these design guidelines and failed to conduct any traffic studies, which is a failure to identify and study the impacts of redesignating streets, which constitutes substantial evidence of a fair argument that the street redesignations may have significant transportation impacts. Protect Our Glendale cites without explanation Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at page 311 and Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pages 1378-1379, 1382 as support for the argument, both of which involved a specific project implementation, not a plan-level document.
The argument appears to be either that a present EIR should be prepared for future guidelines and studies or that the City should not be allowed to plan for future guidelines or studies. Protect Our Glendale supports neither argument with any rationale or authority.
We fail to see how the City could study the environmental impact of future design guidelines or traffic studies. In any event, the City's purported failure to do so is not substantial evidence that street redesignations may have significant transportation impacts.
(b). Covid; Project Goals; Assumptions; and Public Opposition
Protect Our Glendale argues that the Plan is unwise because (1) the City's CEQA review occurred before the 2020 COVID pandemic, rendering its data obsolete and its conclusions inaccurate; (2) the Plan will not increase walking or biking as an alternative to automobile use, and thereby reduce emissions and improve regional air quality; (3) and several members of the public opposed the Plan on the grounds that public transportation and bicycle riding are undesirable, and the Plan would result in a "traffic nightmare." Protect Our Glendale argues that the Plan's deficiencies undermine its CEQA study.
We need express no view on these matters because even if true, the undesirability or ineffectiveness of a plan to increase walking, bicycling and public transit use is not substantial evidence of a significant environmental impact caused by that plan. Protect Our Glendale argues the City relied on its unrealistic goals to underestimate environmental impacts, but nothing in the record supports this speculation.
(c). Parking
It is not clear that the Plan will reduce parking. The Plan proposes to remove approximately four spaces at one intersection and replace one traffic lane with a line of angled parking. The net effect appears to be to increase parking. Taxpayers concerned a project which provided 174 fewer parking spaces than needed. (Taxpayers, supra, 215 Cal.App.4th at p. 1046.) Here no evidence suggests the Plan creates a parking shortage.
(d). Cumulative Impacts
Protect Our Glendale asserts that the City failed to study the Plan's transportation impacts cumulative with several other projects in Glendale and surrounding jurisdictions, which it argues renders it "reasonably foreseeable," presumably as a matter of common sense, that the Plan may have cumulative impacts with those other projects. (See § 21083, subd. (b)(2) ["the incremental effects of an individual project are considerable when viewed in connection with . . . the effects of other current projects"]; CEQA Guidelines, §§ 15064(h)(1) [same] and 15065(a)(3) [same].)
The CEQA Guidelines define cumulative impacts as "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.
"(a) The individual effects may be changes resulting from a single project or a number of separate projects.
"(b) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (CEQA Guidelines, § 15355.)
"When assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether the effects of the project are cumulatively considerable. An EIR must be prepared if the cumulative impact may be significant and the project's incremental effect, though individually limited, is cumulatively considerable. 'Cumulatively considerable' means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." (CEQA Guidelines, § 15064(h)(1).)
"When there is no substantial evidence of any individual potentially significant effect by a project under review, the lead agency may reasonably conclude the effects of the project will not be cumulatively considerable, and it need not require an EIR on this basis." (Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 701-702; see Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768, 782 [same].)
As discussed above, Protect Our Glendale adduces no substantial evidence of any individual potentially significant transportation impact by the Plan. The City's purported failures to study a topic, adduce evidence supporting its conclusions, or identify guidelines to be used in the future do not themselves constitute substantial evidence of an adverse environmental impact. Therefore, the City was entitled to conclude that the effects of the Plan would not cumulate with effects of other plans, and it was not required to prepare an EIR on this basis.
d. Mitigated Transportation Impacts
Our third category concerns mitigated transportation impacts. The City found that removing traffic lanes and installing bulb-outs could cause a conflict with CEQA Guidelines section 15064.3(b)(2), which requires an agency to evaluate a transportation project's impact on vehicle miles traveled. The City explained that lane removal and bulb-out installation could cause drivers to make detours, thus increasing vehicle miles traveled to the point they constitute a significant environmental impact. The City explained it was in the process of developing vehicle miles traveled standards, and before implementing any improvement, i.e., removing a traffic lane or installing a bulb-out, it committed to measuring the impact of the improvement on vehicle miles traveled, and mitigating any impact to insignificance.
Protect Our Glendale agrees that because the Plan's proposed improvements would occur on busier arterial streets, it is reasonably foreseeable that traffic would re-route or spill over into adjacent non-arterial streets and residential neighborhoods.
Although TRANS-1 and -2 propose to mitigate this impact to less-than-significant levels, Protect Our Glendale argues TRANS-1 and -2 are inadequate and unenforceable, and in any event improperly defer mitigation.
1. Legal Principles
An agency must adopt feasible mitigation measures to substantially lessen or avoid otherwise significant adverse environmental impacts. (§ 21002.) To be legally adequate, a mitigation measure must be capable of: "(a) Avoiding the impact altogether by not taking a certain action or parts of an action[;] [¶] (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation[;] [¶] (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment[; or] [¶] (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action." (CEQA Guidelines, § 15370.)
"Where several measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified.... The specific details of a mitigation measure, however, may be developed after project approval when it is impractical or infeasible to include those details during the project's environmental review provided that the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will be considered, analyzed, and potentially incorporated in the mitigation measure. Compliance with a regulatory permit or other similar process may be identified as mitigation if compliance would result in implementation of measures that would be reasonably expected, based on substantial evidence in the record, to reduce the significant impact to the specified performance standards." (CEQA Guidelines, § 15126.4(a)(1)(B).)
"[T]he analysis must be specific enough to permit informed decision making and public participation....The need for thorough discussion and analysis is not to be construed unreasonably, however, to serve as an easy way of defeating projects. 'Absolute perfection is not required; what is required is the production of information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned.... When the alternatives have been set forth in this manner, an EIR does not become vulnerable because it fails to consider in detail each and every conceivable variation of the alternatives stated.'" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 406-407 (Laurel Heights).)
Where substantial evidence supports the approving agency's conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy. (Laurel Heights, supra, 47 Cal.3d at p. 407.)
2. Adequacy of TRANS-1 and -2
(a). Choice of Remedy
Protect Our Glendale argues TRANS-1 (for lane removal) and TRANS-2 (for bulb-outs) are inadequate because they commit the City only to a vehicle miles traveled study or a level of service study, not both.
Protect Our Glendale cites no authority, and we are aware of none, for the proposition that an agency must use all available methods, or any particular combination of methods, to reduce an impact to a less-than-significant level. In any event, Protect Our Glendale mischaracterizes TRANS-1 and -2. Both provide that "Prior to implementation of the pedestrian projects involving the elimination or removal of vehicle travel lanes, the City shall prepare a Vehicle Miles Travelled (VMT) analysis, and as applicable a level of service (LOS) and queuing analysis of the affected intersection to determine whether the project would cause a significant impact per the City's LOS thresholds or would result in queuing that could affect traffic operations at adjacent intersections." (Italics added.)
TRANS-1 and -2 thus commit the City to at least a vehicle miles traveled analysis, which CEQA Guidelines section 15064.3 permits. They also commit the City to a level of service and/or queuing analysis "as applicable." Protect Our Glendale offers no explanation why this does not suffice.
(b). Study vs. Mitigation
Protect Our Glendale argues TRANS-1 and -2 are inadequate because they commit the City only to conducting a study, not to mitigating an environmental impact. We disagree.
As stated above, "[t]he specific details of a mitigation measure . . . may be developed after project approval when it is impractical or infeasible to include those details during the project's environmental review," "provided that the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will be considered, analyzed, and potentially incorporated in the mitigation measure." (CEQA Guidelines, § 15126.4(a)(1)(B).)
CEQA Guidelines section 15126.4 provides in pertinent part: "(a) Mitigation Measures in General. "(1) An EIR shall describe feasible measures which could minimize significant adverse impacts .... [¶] . . . [¶] "(B) . . . Formulation of mitigation measures shall not be deferred until some future time. The specific details of a mitigation measure, however, may be developed after project approval when it is impractical or infeasible to include those details during the project's environmental review provided that the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will be considered, analyzed, and potentially incorporated in the mitigation measure. Compliance with a regulatory permit or other similar process may be identified as mitigation if compliance would result in implementation of measures that would be reasonably expected, based on substantial evidence in the record, to reduce the significant impact to the specified performance standards."
Because the Project is a long-term, high-level plan, with no specific construction project on the table, and because the City has as yet developed no vehicle miles traveled standards, it is impractical or infeasible to include specific details of a mitigation measure during the project's environmental review.
TRANS-1 and -2 commit the City to mitigating any significant impact by adopting specific vehicle miles traveled or level of service performance standards, as appliable, and by (1) modifying the implementation to lessen the impact or (2) making findings that significant beneficial pedestrian and/or other impacts would reduce the adverse impact to a less-than-significant level.
This commitment suffices.
(c). Impact/Benefit Offsets
Protect Our Glendale argues that the "findings" outcomes in TRANS-1 and -2 (that if a significant impact exists, "the City shall make findings, that significant beneficial pedestrian impacts and/or other beneficial impacts would reduce the adverse . . . impact to a less-than-significant level") (1) constitutes improper impact/benefit balancing in an MND (as opposed to an EIR), and (2) permits unidentified social benefits to offset physical transportation impacts. We disagree.
By their plain language, TRANS-1 and -2 obligate the City to find that a significant beneficial pedestrian or other benefit would "reduce" the adverse impact to a less-than-significant level. The mitigation measures do not permit the City to offset an impact by balancing it against a benefit. Protect Our Glendale argues that no social benefit can reduce a transportation impact. We disagree. A direct transportation impact caused by a physical change to a street, for example, might be reduced if that change induces people to drive less often.
3. Enforceability of TRANS-1 and -2
TRANS-1 and -2 provide that the City's Director of Community Development and Director of Public Works are responsible for implementation.
Relying on CEQA Guidelines prohibiting delegation of environmental findings (Guidelines, § 15025), prohibiting delegation of statements of overriding considerations (Guidelines, § 15093), and mandating a written sign-off during implementation on any significant environmental effect identified in an EIR (Guidelines, § 15091), Protect Our Glendale argues that delegating implementation of TRANS-1 and -2 to a nonelected city officer, without requiring a written sign-off on any mitigation measure, renders TRANS-1 and -2 unenforceable. We disagree. Guidelines sections 15025 and 15093 pertain only to environmental findings and statements of overriding considerations, not implementation of mitigation measures. Guidelines section 15091 requires only that adverse effects identified in an EIR be signed off on during implementation. Here there is no EIR.
4. Deferral
Protect Our Glendale argues that to the extent the Plan contemplates future approvals of "pedestrian projects," it evades consideration of the cumulative impacts of each project. In a similar vein, it argues the Plan's mitigation measures as a whole fail because they improperly defer mitigation. We disagree.
As discussed above, CEQA Guidelines section 15126.4 provides that an agency may develop a plan-level project that proposes no specific construction implementation. When, as here, such a course renders it infeasible or impractical to evaluate future environmental impacts, the agency may develop the specific details of mitigation measures after project approval "provided that the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will be considered, analyzed, and potentially incorporated in the mitigation measure." (CEQA Guidelines, § 15126.4(a)(1)(B).)
Thus, an agency may defer committing to specific mitigation measures if such measures are described in an EIR and performance criteria are identified. (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1026-1030; see City of Hayward v. Board of Trustees of Cal. State Univ. (2015) 242 Cal.App.4th 833, 855 [upholding future adaptive strategies designed to respond to changing, on-the-ground conditions]; Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, 971 [upholding performance standards rather than specific mitigation details].)
Protect Our Glendale preliminarily argues that CEQA Guidelines section 15126.4 pertains only to EIRs, not to an MND as here. The argument is without merit. (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1396 [approving deferral of specific mitigation details in an MND].)
Protect Our Glendale argues the City may not defer formulating its specific mitigation details because it is not infeasible or impracticable to formulate them now. It argues any mitigation measures must specifically identify examples of actions that can feasibly achieve the required threshold.
We disagree. The Plan is a 25-year, high-level planning project that identifies no specific construction implementation. Its transportation impact must be measured by a vehicle miles traveled standard that is relatively new, being implemented in 2018, and for which the City as yet has no protocol. It is thus impractical or infeasible to formulate now the mitigation measures for future projects.
"Certainly, when drafting an EIR or a negative declaration, an agency must necessarily engage in some forecasting. (CEQA Guidelines, § 15144.) 'While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can.' (Ibid., italics added.) Nonetheless, it need not consider impacts that are too speculative. The CEQA Guidelines explain that '[i]f, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.' (CEQA Guidelines, § 15145.) After all,' "where future development is unspecified and uncertain, no purpose can be served by requiring an EIR to engage in sheer speculation as to future environmental consequences." '" (Aptos Council v. County of Santa Cruz, supra, 10 Cal.App.5th at p. 295.)
Protect Our Glendale argues the Plan itself should be deferred until each individual development project is designed. We disagree. CEQA allows for prospective planning projects. (See Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 575.)
Relying on King &Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (King &Gardiner), Protect Our Glendale argues TRANS-1 and -2 do not commit the City to mitigation, do not include specific performance measures, and do not provide potential actions to feasibly achieve a performance measure. We disagree. TRANS-1 and -2 include performance measures-vehicle miles traveled standards the City is currently formulating. And if any significant impact is identified, TRANS-1 and -2 require either physical redesign of an implementation or a finding that a beneficial impact reduces the adverse impact to insignificance, for example because the Plan reduced vehicle usage.
King &Gardiner is distinguishable. There, the prospective mitigation plan, which was developed by private parties, required mitigation only "to the extent feasible," with no performance standards, and did not commit the agency to adopting the plan. (King &Gardiner, supra, 45 Cal.App.5th at p. 855.)
Protect Our Glendale argues that the performance thresholds of TRANS-1 and -2-the City's vehicle miles traveled or level of service standards, as applicable-are legally inadequate because they are optional, which precludes certainty and fails to guarantee that impacts will be "clearly" reduced to insignificant levels. We disagree. Compliance with an applicable threshold is required by TRANS-1 and -2, not optional. That it is unknown in the present which threshold will apply in the future does not render the mitigation scheme uncertain.
Protect Our Glendale argues that the Plan cannot propose study of future environmental impacts because such study requires determination of an "environmental baseline," which must occur before project approval. We disagree. An agency may, and in fact must, consider new information in the environmental baseline if changes would involve a new significant impact. (CEQA Guidelines, § 15162.)
e. Program-Level Review of Planning Documents
The Plan has eight chapters identifying "projects, programs, and policy changes needed to make Glendale an even better and safer place to walk."
Protect Our Glendale argues without authority that although CEQA permits a program-level EIR, it does not permit a program-level MND. We disagree.
1. CEQA Applies to "Projects," Including Planning Projects
CEQA applies to "proposed activities," which it often terms "projects." (Cal. Code Regs. (CCR), tit. 14, § 15002, subd. (a).) "The term 'project' has been interpreted to mean far more than the ordinary dictionary definition of the term." (Id. at subd. (d).)" 'Project' means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: [¶] . . . [¶] . . . An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof ...." (Id. at § 15378, subd. (a)(1).) CEQA thus distinguishes between construction projects and local general plan projects.
Here, the project is a local general pedestrian plan that proposes goals, policies and guidelines for future developments. It does not bind the City to any specific physical improvements.
2. CEQA Permits a Planning Project MND
To reiterate the process described above, under CEQA, an agency first conducts an initial study to determine" 'if the project may have a significant effect on the environment.'" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 945, italics added.)
If the initial study reveals no substantial evidence that the project may have a significant environmental effect, the agency prepares a negative declaration to that effect. (CEQA Guidelines, §§ 15063(b)(2), 15070.)
"If there is substantial evidence that the project may have a significant effect on the environment," then the agency must prepare an EIR before approving the project. (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 945.)
However, if significant environmental impacts are identified but project revisions will avoid or mitigate them such that clearly no significant effect on the environment would occur, the agency may prepare an MND.
By this process, CEQA necessarily contemplates that an initial study of the potential environmental impacts of a planning project may result in an MND.
Environmental impacts" 'should be assessed as early as possible in government planning.' Environmental problems should be considered at a point in the planning process' "where genuine flexibility remains."' [Citation.] A study conducted after approval of a project will inevitably have a diminished influence on decisionmaking. Even if the study is subject to administrative approval, it is analogous to the sort of post hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA." (Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at p. 307.)
But with a long-term planning project, reassessment and mitigation of environmental impacts when a specific construction project is proposed is as early as environmental impacts can be assessed. CEQA thus permits program-level MNDs. (See Pala Band of Mission Indians v. County of San Diego, supra, 68 Cal.App.4th at p. 575.)
3. Protect Our Glendale's Authorities are Inapposite
Protect Our Glendale relies on one statute, two CEQA Guidelines and one case for the proposition that contrary to the process described above, CEQA mandates that an EIR be prepared for a program-level project, and does not allow a program-level MND.
Protect Our Glendale first relies on section 21068.5, which it argues requires that a tiered EIR be prepared for program-level projects. We disagree.
Section 21068.5 provides in full:" 'Tiering' or 'tier' means the coverage of general matters and environmental effects in an environmental impact report prepared for a policy, plan, program or ordinance followed by narrower or site-specific environmental impact reports which incorporate by reference the discussion in any prior environmental impact report and which concentrate on the environmental effects which (a) are capable of being mitigated, or (b) were not analyzed as significant effects on the environment in the prior environmental impact report."
"Unlike '[p]roject EIR[s],' which 'examine[] the environmental impacts of a specific development project' [citation], the CEQA provisions governing tiered EIRs 'permit[] the environmental analysis for long-term, multipart projects to be "tiered," so that the broad overall impacts analyzed in an EIR at the first-tier programmatic level need not be reassessed as each of the project's subsequent, narrower phases is approved.'" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 959.)
Section 21068.5 simply defines "tier." It does not mandate tiered EIRs for program- or planning-level projects.
Protect Our Glendale next relies on CEQA Guidelines sections 15152 and 15168. Guidelines section 15152 again defines "tier" and describes the usage and benefits of tiered EIRs. Guidelines section 15168 defines "program EIR" as "an EIR which may be prepared on a series of actions that can be characterized as one large project and are related either: [¶] (1) Geographically, [¶] (2) As logical parts in the chain of contemplated actions, [¶] (3) In connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program, or [¶] (4) As individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways." Guidelines section 15168 then goes on to describe the uses and advantages of program EIRs. Neither guideline mandates that a tiered or program EIR be prepared for every program-level project, especially not a project where there is no substantial evidence that the project may have a significant effect on the environment.
Finally, Protect Our Glendale relies on Friends of College of San Mateo Gardens for the proposition that CEQA does not permit programmatic environmental review of planning documents through an MND. The case actually cuts against Protect Our Glendale's position.
In Friends of College of San Mateo Gardens, "a community college district proposed a district-wide facilities improvement plan that called for demolishing certain buildings and renovating others. The district approved the plan after determining that it would have no potentially significant, unmitigated effect on the environment." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 943.) The district thus issued an MND.
"Years later, the district proposed changes to the plan. The changes included a proposal to demolish one building complex that had originally been slated for renovation, and to renovate two other buildings that had originally been slated for demolition. The district approved the changes after concluding they did not require the preparation of a subsequent or supplemental EIR." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 943.)
The issue in Friends of College of San Mateo Gardens was quite narrow, and is not probative here. What is probative is that in deciding the issue, the Supreme Court distinguished between an MND and a tiered EIR. It stated, the "initial study and MND were not a tiered EIR. The District's 2006 initial study and MND did not purport 'to defer analysis of certain details of later phases of long-term linked or complex projects until those phases are up for approval.' [Citation.] The District's initial environmental review documents instead expressly concluded that 'all potential impacts' of the entire project-including every building on the campus-had 'been mitigated to a point where no significant impacts would occur, and there is no substantial evidence the project would have a significant effect on the environment.' [Citations.] To now entertain the argument that the 2006 MND should be treated as a tiered EIR would disregard the substance of the District's conclusions in order to permit plaintiff to raise an untimely challenge as to the adequacy of the MND, as well as the District's decision to proceed by MND in the first place." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at pp. 960-961.)
Rather than holding that CEQA does not permit programmatic environmental review of planning documents through an MND, the Supreme Court implicitly endorsed program-level MNDs by holding that to treat such an MND as a tiered EIR would "disregard the substance of the [agency's environmental] conclusions." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 961.)
Protect Our Glendale thus offers no authority contravening the process outlined above for adopting an MND for a planninglevel project.
f. Future CEQA Review is not Precluded
Protect Our Glendale argues for the first time in its reply that approval of the Plan will preclude future CEQA review because "an MND ends CEQA review." We disagree.
CEQA Guidelines section 15162 provides that "[w]hen an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record [that] [¶] . . . Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects ...." (CEQA Guidelines, § 15162(a)(1).)
This subsequent review provision is "designed to ensure that an agency that proposes changes to a previously approved project 'explore[s] environmental impacts not considered in the original environmental document.'" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 951.)
Thus, when each potential future improvement is proposed, designed, and funded, Guidelines section 15162 obligates the City to review the project for new significant environmental effects if the improvement materially deviates from the Plan.
g. Conclusion
We conclude Protect Our Glendale failed to satisfy its burden of adducing substantial evidence of a fair argument of any substantial environmental impact.
B. Vehicle Code
Protect Our Glendale contends the Plan violates Vehicle Code section 21101 by directing the permanent, partial closure of city streets without state approval. We disagree.
We review the interpretation of a regulation or statute de novo. (Family Health Centers of San Diego v. State Dept. of Health Care Services (2021) 71 Cal.App.5th 88, 97.)
A city has no authority over vehicular traffic control except as expressly provided by the Legislature. (City of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, 1106-1107.)
Vehicle Code section 21101 provides in part: A city may adopt rules and regulations closing a street to vehicular traffic only when in the opinion of the legislative body having jurisdiction the highway is no longer needed for vehicular traffic. (Veh. Code, § 21101, subd. (a)(1).)
Here, the Plan proposes no street closing. (See Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1179 ["Vehicle Code section 21101, subdivision (a)(1) grants authority only for a complete closure of a street to all vehicular traffic"].) "Relatively permanent, physical changes in the width or alignment of roadways that are effected by islands, strips, shoulders, and curbs clearly are within the construction and maintenance power [citation] though of course they may alter patterns of traffic." (Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 556; see Veh. Code, § 21101, subd. (g) [permitting a local authority to "[p]rohibit[] entry to, or exit from, or both, from any street by means of islands, curbs, traffic barriers, or other roadway design features to implement the circulation element of a general plan"].)
C. Conclusion
Because Protect Our Glendale failed to adduce evidence supporting a fair argument of a substantial environmental impact, and because the Plan does not violate the Vehicle Code, the judgment is affirmed.
Senate Bill No. 922 The City observes that Senate Bill No. 922 enacted a complete statutory exemption from CEQA for pedestrian plans (such as the Plan) effective January 1, 2023. (Stats. 2022, ch. 987.) It argues that as a practical matter there is no effective remedy that could be ordered in the unlikely event Protect Our Glendale succeeds on any of its CEQA claims. We disagree. CEQA requires that when an agency determines a project is exempt, it must give notice of that determination to the public, which begins the limitation period for any challenge. Here there has been no such notice because the City has not yet determined the Plan is exempt. Therefore, affirmance on the ground that the Plan will inevitably be deemed exempt would deprive Protect Our Glendale of the opportunity to challenge that exemption.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur: ROTHSCHILD, P. J. WEINGART, J.