Japanese Village LLC v. L.A. County Metropolitan Transportation Authority CA2/5 ( 2015 )

Filed 7/9/15 Japanese Village LLC v. L.A. County Metropolitan Transportation Authority CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
JAPANESE VILLAGE LLC, B259725
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS137343)
v.
LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION
AUTHORITY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
L. Fruin, Jr., Judge. Affirmed.
Crockett & Associates and Robert D. Crockett; Latham & Watkins and Benjamin
J. Hanelin for Plaintiff and Appellant.
Mark J. Saladino, County Counsel, Charles M. Safer, Assistant County Counsel,
and Ronald W. Stamm, Principal Deputy County Counsel; Remy Moose Manley,
Whitman F. Manley, Tiffany K. Wright, Jennifer S. Holman and Jeannie Lee for
Defendant and Respondent.
I. INTRODUCTION
Plaintiff, Japanese Village LLC, is the owner of the Japanese Village Plaza in the
Little Tokyo neighborhood of Downtown Los Angeles. Defendant, The Los Angeles
County Metropolitan Transit Authority, is constructing three subway stations and an
underground subway through Downtown Los Angeles. The project is entitled the
Regional Connector Transit Connector Project. The subway will directly link the 7th
Street/Metro Center Station located at 7th and Figueroa Streets to the Metro Gold Line
light-rail system in Little Tokyo.
Because of partial federal funding for the project, the Federal Transit
Administration was required to conduct environmental review pursuant to the National
Environmental Policy Act. (42 U.S.C. § 4321 et seq.) Under these circumstances, an
environmental impact report/environmental impact study must be jointly prepared by
federal and local authorities. (Environmental Protection Information Center v. California
Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 472; Cal. Code of Regs., tit.
14, § 15220 et seq,) For clarity’s purpose, the final environmental impact
report/environmental impact study will be referred to as the environmental impact report.
Plaintiff appeals from the denial of its mandate petition and declaratory relief
complaint which upheld defendant’s certification of the environmental impact report.
Plaintiff’s challenges arise under the California Environmental Quality Act. (Pub.
Resources Code1, § 21000 et seq.) We are only reviewing the environmental impact
report for violations of the California Environmental Quality Act even though it was
jointly prepared by federal authorities. Defendant contends in its cross-appeal that the
project is exempt from environmental review. We conclude the trial court correctly ruled
defendant could properly certify the environmental impact report as it relates to the
Japanese Village Plaza. Because we conclude the trial court correctly upheld the
environmental impact report’s certification, we dismiss defendant’s cross-appeal as moot.
1 All further section references are to the Public Resources Code unless otherwise
indicated.
2
II. PLAINTIFF’S CHALLENGES TO THE ENVIRONMENTAL IMPACT REPORT’S
CERTIFICATION
A . Plaintiff’s Verified Mandate Petition and Declaratory Relief Complaint
On May 21, 2012, plaintiff filed its verified mandate petition and declaratory relief
complaint. According to the petition and complaint, plaintiff owns a 92,000 square foot
property with retail, dining and office venues. The petition and complaint identifies
various deficiencies in the environmental impact report which thereby violates the
California Environmental Quality Act. The first cause of action seeks issuance of a writ
of mandate because the environmental impact report does not comply with specified
California Environmental Quality Act provisions. Specifically, plaintiff alleges: the
draft environmental impact report fails to propose a specific, identifiable project; the draft
environmental impact report fails to develop alternatives and mitigation measures to
avoid or substantially lessen significant ecological effects; the environmental impact
report mischaracterizes the nature and extent of many of the project’s ecological effects;
the environmental impact report lacks a detailed analysis of many of the project’s
significant ecological consequences on Japanese Village Plaza in particular and the Little
Tokyo community in general; and among the matters which are not the subject of an
appropriate detailed analysis are parking issues, land use restrictions and noise impacts
from the construction and operation of a subway and station.
Further, plaintiff alleges that the inadequate analysis is confirmed by postponed
studies relating to the project’s design and construction phases. The necessary studies
and surveys which have been postponed include: a traffic management and construction
mitigation plan; a construction mitigation program; structural surveys to establish
ground-movement and loss potential; a verification of the location of underground
utilities; confirmation of construction haul routes; monitoring requirements for total
construction; a parking needs assessment for Little Tokyo; further design features for the
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First Street/Central Avenue station; a cost-benefit analysis relating to the use of a single
tunnel boring machine; and conducting subsurface geotechnical investigations.
In addition, the first cause of action alleges: there should have been recirculation
of the environmental impact report after material changes were made to the noise impact
analysis from that in the draft environmental impact report; the environmental impact
report fails to analyze the significant ecological effects caused by reasonably foreseeable
future development; defendant failed to adopt feasible alternatives to locating the project
beneath Japanese Village Plaza; and defendant failed to adopt feasible mitigation
measures that would resolve parking, noise, future development and subsidence impacts.
And, according to the first cause of action, defendant’s findings and statement of
overriding considerations are not supported by substantial evidence. Finally, the first
cause of action alleges: “[Defendant] was required to make specific findings [concerning
the absence of feasible mitigation measures] and discuss the ‘[s]pecific economic, legal,
social, technological, or other considerations’ that outweigh these significant,
unavoidable impacts. ([] § 21081.) [Defendant] failed to do so, and its Findings of Fact
and Statement of Overriding Considerations, therefore, fail as a matter of law.”
The second cause of action seeks declaratory relief. The basis of plaintiff’s
declaratory relief claim is that defendant violated the California Environmental Quality
Act by certifying the environmental impact report. The petition and complaint seeks: a
writ of mandate directing defendants to set aside its approval of the project and
certification of the environmental impact report; to cease all activities related to the
construction of the project until there is compliance with the California Environmental
Quality Act; a writ of mandate directing defendant to stop construction of the project
until a proper environmental impact report has been prepared; a declaratory judgment that
defendant’s certification of the environmental impact report violates the requirements of
the California Environmental Quality Act; injunctive orders preventing defendant from
proceeding with the project until a legally sufficient environmental impact report has
been prepared; and attorney fees and costs.
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Plaintiff moved to file an amended mandate petition. The trial court never issued
a definitive ruling on plaintiff’s amendment motion. Thus, plaintiff’s operative pleading
is the original petition and complaint.
B. Plaintiff’s Trial Brief
The trial brief identifies the following issues: the environmental impact report
fails to adequately evaluate noise impacts both during the project’s construction and long-
term operation; the environmental impact report is deficient because it fails to properly
assess parking impacts; the environmental impact report’s last minute change to the
subway route merely shifts previously identified ecological effects and amplifies them;
the environmental impact report fails to adequately analyze land use and subsidence
repercussions; the environmental impact report improperly defers analysis of numerous
aspects of the project; and the statement of overriding considerations is deficient. The
argument portion of plaintiffs’ trial brief asserts: the environmental impact report fails to
address significant impacts on Little Tokyo; the factual findings and overriding
considerations statement misrepresents the information contained in the environmental
impact report; defendant failed to adopt feasible and enforceable mitigation measures;
mitigation measures were improperly deferred; and defendant failed to adopt a feasible
alternative that would reduce project impacts.
Plaintiff’s reply argues: significant construction noise impacts have not been
mitigated; defendant improperly rejected a feasible mitigation measure to reduce
operational noise impacts; no adequate study was made of parking impacts on Little
Tokyo; defendant failed to evaluate land-use impacts resulting from the acquisition of
underground easements in a dense urban area; there was improper deferral of analysis
concerning numerous impacts; and defendant violated unspecified provisions of the
California Environmental Quality Act by rejecting a feasible alternative with fewer
ecological effects. In addition, plaintiff addressed defendant’s exemption contention.
Other than in connection with a ground-borne noise and vibration issue, plaintiff never
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argued defendant failed to adequately respond to comments to the draft environmental
impact report.
C. Challenges on Appeal
Plaintiff presents four principal challenges to defendant’s certification of the
environmental impact report. First, plaintiff challenges determinations made in
connection with ground-borne noise and vibration impacts, both in terms of construction
and day-to-day subway operations. In this regard, plaintiff contends there is no
substantial evidence defendant’s mitigation measures would have reduced noise and
vibration impacts to less than significant levels. Second, plaintiff contends defendant did
not study nor properly mitigate the project’s parking impacts. Third, plaintiff asserts
defendant did not properly mitigate subsidence risks. Fourth, plaintiff contends that
defendant’s responses to comments concerning noise, vibration, parking and subsidence
were inadequate.
III. STANDARD OF REVIEW
The gravamen of plaintiff’s contentions is the environmental impact report’s
discussion is flawed and fails to meet statutory requirements for good-faith investigation
and disclosure. An environmental impact report’s fundamental purpose is to inform
public officials and the people they serve of any significant adverse effects a project is
likely to have on the environment. (§ 21061; Neighbors for Smart Rail v. Exposition
Metro Line Const. Authority (2013) 57 Cal.4th 439, 447; Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428.) We
presume the correctness of defendant’s decisions in the environmental impact report
context. (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1,
11; State Water Resources Control Board Cases (2006) 136 Cal.App.4th 674, 723.) Our
Supreme Court has described the limited nature of our review: “In reviewing agency
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actions under [the California Environmental Quality Act], . . . section 21168.5 provides
that a court’s inquiry ‘shall extend only to whether there was a prejudicial abuse of
discretion. Abuse of discretion is established if the agency has not proceeded in a manner
required by law or if the determination or decision is not supported by substantial
evidence.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553,
564; see Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210
Cal.App.4th 184, 195.)
Thus, our standard of review depends upon the nature of the challenge to an
environmental impact report: “In evaluating an [environmental impact report] for
[California Environmental Quality Act] compliance, then, a reviewing court must adjust
its scrutiny to the nature of the alleged defect, depending on whether the claim is
predominantly one of improper procedure or a dispute over the facts. For example,
where an agency failed to require an applicant to provide certain information mandated
by [the California Environmental Quality Act] and to include that information in its
environmental analysis, we held the agency ‘failed to proceed in the manner prescribed
by [the California Environmental Quality Act].’ (Sierra Club v. State Bd. of Forestry
(1994) 7 Cal.4th 1215, 1236; see also Santiago County Water Dist. v. County of Orange
[(1981)] 118 Cal.App.3d [818], 829 [[environmental impact report] legally inadequate
because of lack of water supply and facilities analysis].) In contrast, in a factual dispute
over ‘whether adverse effects have been mitigated or could be better mitigated’ (Laurel
Heights [Improvement Assn. v. Regents of University of California (1988) ] 47 Cal.3d
[376,] 393), the agency’s conclusion would be reviewed only for substantial evidence.”
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra,40 Cal.4th at p. 435.) The gravamen of all of plaintiff’s contentions relate to its factual
disagreements with the environmental impact report’s conclusions. Thus, our standard of
review as to defendant’s environmental conclusions is for substantial evidence.
In terms of the correctness of defendant’s environmental conclusions, our
Supreme Court has explained: “Thus, the reviewing court ‘“does not pass upon the
correctness of the [environmental impact report’s] environmental conclusions, but only
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upon its sufficiency as an informative document.”’ [Citations.] We may not set aside an
agency’s approval of an [environmental impact report] on the ground that an opposite
conclusion would have been equally or more reasonable.” (Citizens of Goleta Valley v.
Board of Supervisors, supra, 52 Cal.3d at p. 564, quoting Laurel Heights Improvement
Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392 and County of
Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) In a similar vein, our
Supreme Court has explained: “‘A court’s task is not to weigh conflicting evidence and
determine who has the better argument when the dispute is whether adverse effects have
been mitigated or could be better mitigated. We have neither the resources nor scientific
expertise to engage in such analysis, even if the statutorily prescribed standard of review
permitted us to do so.’” (Western States Petroleum Assn. v. Superior Court (1995) 9
Cal.4th 559, 572 citing Laurel Heights Improvement Assn. v. Regents of University of
California, supra, 47 Cal.3d at p. 393.) Therefore, we defer to defendant’s resolution of
conflicting engineering opinions and evidence. (Western States Petroleum Assn. v.
Superior Court, supra, 9 Cal.4th at p. 572; accord Environmental Council of Sacramento
v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1042.)
IV. PLAINTIFF’S APPEAL
A. Ground-Borne Noise and Vibration
1. The setting
Plaintiff is the owner of the Japanese Village Plaza located in the Little Tokyo
district of Los Angeles. The environmental impact report describes Little Tokyo thusly:
“Little Tokyo is a unique cultural community in downtown Los Angeles because it has
the largest Japanese-American community in the continental United States . . . . Little
Tokyo is one of only three remaining Japantowns in the United States (in addition to San
Francisco and San Jose). Little Tokyo has a range of mixed-uses including retail, hotel,
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office, and commercial spaces.” According to the environmental impact report and the
administrative record, the Japanese Village Plaza is a retail and office facility. More than
40 businesses operate in the Japanese Village Plaza. The businesses in the area were
characterized by Evelyn Yoshimura, a member of the Little Tokyo Service Center, as the
“heart and soul” of the neighborhood.
The issues relevant to ground-borne noise and vibration arise because the project
involves construction of two subway tunnels directly beneath the Japanese Village Plaza.
And after construction, subway cars will operate directly beneath the Japanese Village
Plaza. The environmental impact report describes the Japanese Village Plaza as a
sensitive land use. Plaintiff argues that the tunnels are approximately 13 to 15 feet
underground the Japanese Village Plaza. However, the tunnels are passing 13 to 15 feet
below plaintiff’s parking garage. The tunnels in fact will pass 25 feet beneath those
portions of the Japanese Village Plaza where the land use would be sensitive to annoying
noise and vibration. Such sensitive areas are places for sleeping or quiet concentration.
2. The environmental impact report’s assessment of noise and vibration resulting from
construction and operation.
a. Criteria and consultants
In order to measure construction and operational noise and vibration impacts,
defendant relied upon the Federal Transit Authority criteria for ground-borne vibration
and ground-borne noise. Plaintiff does not challenge defendant’s selection of the Federal
Transit Authority criteria for ground-borne vibration and noise. According to the
environmental impact report, ground-borne noise is created when a vibration source
causes a low-frequency rumble sound within a building. The environmental impact
report explains: “[The Federal Transit Administration] has developed impact criteria for
ground-borne vibration . . ., which is expressed as a velocity level in units of VdB, and
ground-borne noise . . . due to transit project construction and operation of transit
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vehicles. . . . [Ground-borne noise] is created when a vibration source such as a train
pass-by causes vibration of floors and walls in nearby buildings resulting in a low
frequency rumble sound within the building. Impacts of [ground-borne noise] are
particularly important for underground transit operations because, depending on the soil
type, tunnels more efficiently transmit vibration to the surrounding soil than surface track
structures.” Thus, ground-borne noise results from vibrations caused by subway
construction and operations.
The environmental impact report engages in a comprehensive analysis of noise
and vibration levels. As noted, ground-borne vibration is measured technically in units of
VdB. Ground-borne noise is measured in dBA units. The environmental impact report
engages in this analysis in the context of subway construction and subsequent operation.
The Federal Transportation Administration considers “a qualitative assessment is
appropriate” where prolonged construction impacts are not anticipated. In contrast, there
are certain quantitative or significance criteria which are applicable to prolonged
construction. Several reports prepared by the Wilson Ihrig & Associates consulting firm
with assistance from other engineering concerns assessed the frequency and levels of
ground-borne vibration and noise impacts. We will examine the professional assessments
of ground-borne noise and vibration at the Japanese Village Plaza in greater detail
shortly.
As noted, the environmental impact report relied upon the previously mentioned
studies conducted by Wilson, Ihrig & Associates, acoustical and vibration consultants
located in California, New York and Washington. In addition, defendants relied upon
acoustical and vibration studies conducted by Parsons Brinckerhoff, Inc. in 2009. Many
of the documents refer to the Parsons Brinckerhoff, Inc. firm as PB. The degreed Parsons
Brinckerhoff, Inc. staff identified in the administrative record include: Amanda Elioff,
P.E. a senior project manager with over 26 years of geotechnical engineering experience
who had authored 19 articles; Dawn L. McKinstry a senior project manager and urban
planner with 29 years experience in planning and travel demand forecasting; Donald J.
Emerson, an urban planner with 40 years of experience with planning experience in
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numerous states; Dr. Eugene J. Kim who had 15 years experience in transportation
planning, transit system design and related systems management; Kevin Keller, a noise
analyst and environmental planner with 22 years experience conducting noise and
technical studies in the West Coast, Midwest and Honolulu; Raymond K.Y. Choy, P.E., a
senior project engineer with extensive experience in highway and rail development in
California, the Philippines and the Peoples Republic of China; Will H. Willson, a risk
manager with 34 years of experience in Canada, the United Kingdom, Ireland and Hong
Kong; and Zafer Mudar, P.E., a supervising engineer with 17 years of engineering
experience with a special emphasis in light rail design.
b. Vibration and noise levels during construction and subway operations
The environmental impact report analyzes ground-borne noise during construction
and later during the subway operations. The environmental impact report analyzes these
significant subway operation impacts in VdB and dBA units; ground-borne vibration and
noise levels respectively. During subway construction, a tunnel boring machine will be
used. The tunnel boring machine’s use during subway construction will result in
potentially significant impacts to office uses in the Japanese Village Plaza.
The environmental impact report concludes that the tunnel boring machine could
result in ground-borne vibration and noise at levels of 86 VdB and 51 dBA respectively.
The federal annoyance criteria for a quiet office for occasional events is 78 VdB and 43
dBA for ground-borne vibration and noise levels. For infrequent events, the federal quiet
office annoyance criteria for ground-borne vibration and noise levels for is 83 VdB and
48 dBA. Thus, even though the maximum vibration and noise from the tunnel boring
machine would be occasional or infrequent, they would potentially result in a significant
environmental impact. The environmental impact report concludes during construction,
“Even though this maximum vibration and noise from the [tunnel boring machine]
operations would be occasional or infrequent, the [tunnel boring machine] activities
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would potentially exceed the annoyance criteria listed above for occasional or frequent
events at the . . . [Japanese Village Plaza] . . . which would result in a significant impact.”
Also during construction, delivery trains are expected generate infrequent ground-
borne noise and vibration events. However, because of the infrequent use of the delivery
trains, the environmental report indicates there would be no impact under the federal
annoyance criteria. The environmental impact report assesses the ground-borne vibration
and noise level for delivery trains at 64 VdB and 42 dBA respectively. But, depending
on the location of the office in the Japanese Village Plaza, a higher ground-borne
vibration and noise level could reach 61 VdB and 36 dBA respectively. This is roughly
10 percent of the vibration and noise levels for construction performed by the tunnel
boring machine. The Wilson Ihrig & Associates July 12, 2011 memorandum explains
that the Federal Transportation Administration assesses the expected 30 trains per day as
an infrequent event. Therefore, under the Federal Transportation Administration
vibration and noise criteria, no significant impact will result from the use of delivery
trains: “Ground[-]borne noise and vibration would also be generated by delivery trains in
the tunnel during construction. These slow moving trains would possibly have wheel
flats or operate on jointed construction rails, and it is estimated that the vibration would
be on the order of 5 to 10 [decibels] less than that generated by [plaintiff’s]
operations. . . . These levels would be less than the criteria for infrequent events and
thus no impact would occur from delivery trains.” (Fn. omitted.) The Federal
Transportation Authority identifies the ground-borne vibration impact criteria for
occasional or infrequent events for a quiet office as 78 or 83 VdB respectively. Under
the federal standards, an occasional event would involve 70 vibration events from the
same source per day. Thus, even without the use of mitigation strategies, the use of slow-
moving delivery trains during construction would have no significant impact.
As to noise related impacts, the environmental impact report states: “While not
generally likely, some [ground-borne noise] from underground construction activity such
as tunneling could occasionally be audible. However, this [ground-borne noise] would be
temporary and of short duration as the construction activity moves along the project
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alignment.” This analysis occurs in the context of a discussion of impacts assuming no
mitigation occurs. As noted, the environmental impact report relies on statistical analysis
provided by the Wilson, Ihrig & Associates and Parsons Brinkerhoff, Inc. firms.
It bears emphasis the July 2011 Wilson, Ihrig and Associates report focuses on
noise and vibration significant impacts for a quiet office environment. There is a less
precise impact analysis for what is called a general assessment of ground-borne noise and
vibration levels. Under the less precise general assessment analysis levels, with a
category 3 institutional landowner such as plaintiff, there would still be no significant
noise and vibration impacts. The variations in annoyance levels are delineated in the
administrative record.
c. Subway operation vibration and noise impacts
In terms of subway operations, without mitigation, the potentially significant
ground-borne noise impacts for a sensitive land use would exceed the Federal Transit
Authority annoyance criterion for frequent events. The environmental impact report
calculates that, without mitigation, with a single pass by a subway train, potentially
between 24 and 47 dBA would be generated under the Japanese Village Plaza. This
ground-borne noise level would potentially exceed the Federal Transit Authority
annoyance criterion for frequent events of 40 dBA. Thus, absent the implementation of
mitigating measures, subway operations at the Japanese Village Plaza could involve
potentially significant ground-borne noise impacts for a sensitive land use. In the event
of two subway trains passing by at the same time, the ground-borne noise level would be
increased to 50 dBA. Two subway trains passing underneath the Japanese Village Plaza
is characterized under the Federal Transit Administration annoyance criterion as an
occasional/infrequent event. According to the environmental impact report, this would
be an infrequent event. The federal annoyance level for occasional/infrequent events for
the Japanese Village Plaza is 43 dBA. Absent mitigation, the ground-born noise level
when two subway trains passed simultaneously is expected to be 50 dBA, above the
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federal annoyance level. Thus, without mitigation, for occasional/infrequent events, the
simultaneous passage of two subway trains is expected, according to the environmental
impact report, to have potentially significant impacts. The development of the foregoing
statistical noise and vibration data was result of additional studies conducted in May 2011
after the filing of the initial environmental impact report. And it bears emphasis, the
source noise level calculations were from both the Parsons Brinkerhoff, Inc. and Wilson
Ihrig & Associates firms.
However, with the adoption of the mitigation measures identified in the
environmental impact report, each of these significant impacts will be reduced to less
than significant effect. We will synthesize the mitigation impacts shortly in the technical
reports supporting the conclusions of the environmental impact report. We now turn to
plaintiff’s contention that the mitigation measures fail to reduce the significant impacts
below those identified utilizing the Federal Transit Administration annoyance levels.
3. Plaintiff’s contentions concerning the absence of substantial evidence to support
defendant’s findings concerning environmental impact report’s discussion of the
effectiveness of the noise and vibration mitigation measures have been forfeited.
Plaintiff’s opening brief fails to identify most of the noise and vibration mitigation
measures discussed in the environmental impact report. Defendant argues the failure to
identify the mitigation measures and argue their insufficiency forfeits these issues on
appeal. Defendant is correct, the opening brief barely mentions the extensive mitigation
measures. The opening brief fails to discuss the extensive technical data that supports the
environmental impact report’s mitigation measure conclusions. Thus, in all respects, the
entire issue of whether the mitigation measures reduced the adverse noise and vibration
ecological effects to less than significant impacts has been forfeited. (Mani Brothers
Real Estate State Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1402;
Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th
360, 380, fn. 16.)
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4. The environmental impact report’s comprehensive discussion of the effectiveness of
the noise and vibration mitigation measures relevant to subway construction is supported
by substantial evidence.
As to construction related impacts, there is substantial evidence the mitigation
measures will reduce vibration and noise impacts on the Japanese Village Plaza to
insignificant levels. As noted, the subway will be constructed underground by means of
two tunnels. Construction will involve the use of a tunnel boring machine which can
cause significant vibration and noise impacts.
The environmental impact report imposes a number of mitigation measures
including: limiting the types of construction-related vibration near sensitive areas;
implementation of a vibration monitoring system to insure no damage results to sensitive
buildings like the Japanese Village Plaza; imposing distance limitations on construction
near sensitive locations; use of less vibration-intensive construction equipment; routing
heavily-laden vehicles and earth moving equipment away from vibration-sensitive
locations; avoiding the simultaneous use of vibration-producing construction activity;
limiting construction activities during nighttime hours; utilization of devices with the
“least impact” necessary to accomplish construction tasks; the use of non-impact
demolition and construction methods; procedures for responding to noise complaints; use
of higher performance mufflers during nighttime hours; utilizing portable noise sheds;
minimization of jacking and pressing operations; maintenance of machinery in good
working order; limiting delivery train speeds; the use of a resilient mat which will reduce
ground-borne levels by at least four dBA; the use of a conveyor system rather than a
delivery train; and a re-analysis of noise levels and use of high compliance resilient
fasteners in the vicinity of the Japanese Village Plaza offices. And, if during the short
time when the tunnel boring machine is utilized and the Federal Transportation Agency
annoyance criteria is exceeded, residents are to be offered temporary relocation. These
mitigation factors must be viewed in the context of the fact construction will last for only
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about three days for each of the two tunnels under any particular building. The
environmental impact report concludes with the utilization of the foregoing mitigation
measures the noise and vibration impacts will be less than significant. The environmental
impact report’s findings are confirmed by the analysis in the Wilson Ihrig & Associates
July 12, 2011 report. The Wilson Ihrig & Associates July 12, 2011 report is consistent
with the firm’s March 28, 2012 analysis. The Wilson Ihrig & Associates July 12, 2011
report, which relies in part on research conducted by the Parsons Brinkerhoff, Inc.
engineers, constitutes substantial evidence concerning construction-related environmental
impacts.
5. The environmental impact report’s comprehensive discussion of the effects of the
noise and vibration mitigation measures as to the operational impacts is supported by
substantial evidence.
In terms of subway operation ground-borne noise and vibration impacts,
substantial evidence supports the finding that mitigation measures have reduced the
environmental impacts to less than significant levels. As noted, the criteria for
determining annoyance levels is that specified by the Federal Transit Administration.
The environmental impact report lists numerous mitigation measures designed to reduce
noise and vibration impacts to insignificant levels. Mitigation measure NV-29 expressly
requires that the ground-borne noise be below the Federal Transportation Administration
annoyance criteria: “In the vicinity of the offices at Japanese Village Plaza . . .
[defendant] shall conduct engineering studies during final design to verify initial
estimates of [ground-borne noise] and shall implement high compliance resilient
fasteners or other appropriate measures as needed to eliminate impacts and reduce
ground-borne noise below [Federal Transportation Administration] annoyance criteria.”
(Italics added.) Further, mitigation measure NV-27 expressly requires the use of various
techniques to reduce operational noise levels below the Federal Transportation
Administration annoyance criteria: “In the vicinity of the Walt Disney Concert Hall and
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the Colburn School, [defendant] shall implement resiliently supported fasteners, isolated
slab track, or other appropriate measures as needed to eliminate impacts and to reduce
[ground-borne noise] below [Federal Transportation Administration] annoyance criteria.”
(Italics added.) The March 28, 2012 Wilson Ihrig & Associates 17-page report expressly
identifies these mitigation measures as the types of construction techniques which will
reduce operational ground-borne noise impacts to insignificant levels. The April 24,
2012 report of Dr. Hooshang Khosrovani confirms the March 28, 2012 Wilson Ihrig &
Associates analysis is based on normal engineering practice. Substantial evidence
supports defendant’s operational noise and vibration conclusions.
Plaintiff is correct about one aspect of mitigation measure NV-27. Mitigation
measure NV-27, as it appears in the environmental impact report, does not require the use
of isolated slab track technology under the Japanese Village Plaza. Isolated slab track
technology involves pouring a concrete slab on top of a continuous elastomeric mat.
Thus, plaintiff contends that this important technology is unavailable under the Japanese
Village Plaza.
Omitting the isolated slab track technology from mitigation measure NV-27 as it
relates to plaintiff is entirely harmless. (§ 21005, subds. (a)-(b); Neighbors for Smart
Rail v. Exposition Metro Line Construction Authority, supra, 57 Cal.4th at p. 463.)
Mitigation measure NV-27 requires defendant to use “high compliance resilient fasteners
or other appropriate measures” at the Japanese Village Plaza to reduce ground-borne
noise below federal annoyance levels. (Italics added.) Thus, defendant is obligated to
use “other appropriate measures” to bring ground-borne noise below the federal
annoyance levels under the Japanese Village Plaza. Nothing in mitigation measure NV-
27 prohibits the use of isolated slab track technology under the Japanese Village Plaza.
Of consequence, the March 28, 2012 Wilson Ihrig & Associates report suggests
minimizing changing track types. The report explains it would be acceptable to use one
type of mitigation throughout the subway line. This can be accomplished so long as the
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mitigating measure provides equal or superior mitigating impact to others listed in the
report.
Complicating matters from plaintiff’s perspective, it is clear defendant intends to
use isolated slab track technology beneath the Japanese Village Plaza. The April 26,
2012 minutes of defendant’s directors board meeting expressly states the use of isolated
slab track technology at Japanese Village Plaza is part of mitigation measure NV-27.
According to defendants’ directors board’s minutes, mitigation measure NV-27 was
intended to state in part: “In the vicinity of the Walt Disney Concert Hall, the Japanese
Village Plaza and the Colburn School, [defendant] shall use resiliently supported
fasteners, isolated slab track, or other appropriate measures as needed to eliminate
impacts and to reduce [ground-borne noise] below [Federal Transportation Authority]
annoyance criteria.” (Italics added.) Thus, defendant’s directors board intended that the
isolated slab track technology be utilized under the Japanese Village Plaza and it be in the
environmental impact report. Its omission from the version of mitigation measure NV-27
in the environmental impact report was a harmless clerical error.
To sum up, omitting the reference to the isolated slab track technology and the
Japanese Village Plaza in mitigation measure NV-27 is harmless error. Mitigation
measure NV-27 in the environmental impact report, which refers to the Japanese Village
Plaza, does not preclude the use of isolated slab track technology. And mitigation
measure NV-27, which references Japanese Village Plaza, requires the use of “other
appropriate measures as needed” to reduce ground-borne vibration and noise levels below
federal annoyance levels. Also, defendant is committed to using the isolated slab track if
needed. The version of mitigation measure NV-27 appearing in the directors board’s
minutes expressly states it is to be used below the Japanese Village Plaza. Moreover, it is
anticipated that the isolated slab track technology is to be used several blocks away from
the Japanese Village Plaza. Mitigation measure NV-27 requires its use at the Colburn
School and the Walt Disney Concert Hall. The March 28, 2012 Wilson Ihrig &
Associates report suggests minimizing changing track types. Finally, the omission of the
isolated slab track technology language from mitigation measure NV-27 did not prevent
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informed decision-making or public participation. (Neighbors for Smart Rail v.
Exposition Metro Line Construction Authority, supra, 57 Cal.4th at pp. 463-464;
see 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2d ed. 2014) §§ 23.36-23.37, pp. 23-45-23-48.) We need not address
plaintiff’s remaining contentions which amount to an unpersuasive effort to have us
reweigh conflicting engineering opinions. (Western States Petroleum Assn. v. Superior
Court, supra, 9 Cal.4th at p. 572; Environmental Council of Sacramento v. City of
Sacramento, supra, 142 Cal.App.4th at p. 1042.)
6. Response to July 1, 2011 letter
Plaintiff contends defendant failed to adequately respond to a July 1, 2011 letter.
This contention has no merit. The brief, conclusory and factually unsupported July 1,
2011 letter was fully responded to prior to the conclusion of the environmental review
proceedings and is part of the administrative record.
B. Subsidence Issues
Plaintiff challenges the environmental impact report’s subsidence mitigation
measures. To begin with, the very truncated discussion in the opening brief omits
virtually all of the relevant facts concerning the subsidence mitigation measures. Hence,
the entire subsidence issue has been forfeited. (Mani Brothers Real Estate State Group v.
City of Los Angeles, supra, 153 Cal.App.4th at p. 1402; Citizens Opposing a Dangerous
Environment v. County of Kern, supra, 228 Cal.App.4th at p. 380, fn. 16.)
In any event, there is no merit to plaintiff’s subsidence contentions. Defendant
admits in the environmental impact report there is the potential for subsidence given the
nature of tunneling operations. However, the following are the mitigation measures to
address these issues: GT-1, monitoring future studies; GT-2, ground improvement
methods; GT-3, tunnel alignment grouted in advance; GT-4, monitoring devices along
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the route; and GT-5, use of particular machinery. Taken together, as demonstrated
below, there is substantial evidence these mitigation measures are sufficient to reduce the
subsidence risks to less than significant levels. (See Friends of Kings River v. County of
Fresno (2014) 232 Cal.App.4th 105, 123 [three related mitigation measures considered
together].)
The feasibility of the above subsidence mitigation measures is supported by
substantial evidence. Appendix U to the environmental impact report consists of a
technical memorandum on geotechnical, subsurface, seismic and hazardous materials.
The technical memorandum was prepared by the Los Angeles consulting firm of Camp
Dresser & McKee, Inc., which is commonly referred to as CDM. The senior project
manager for CDM was Virginia Jackson who had over 25 years experience working on
transportation matters. CDM began environmental and engineering work on the project
in July, 2007. Assisting in the subsidence analysis was the Parsons Brinckerhoff, Inc.
firm’s staff.
The memorandum evaluates potential impacts associated with the project area’s
geological conditions and concludes the proposed tunneling would give rise to potential
adverse subsidence impacts. The memorandum recommends certain measures to
mitigate against potential subsidence: a preconstruction study; construction monitoring;
and limiting potential settlement to below an acceptable threshold value established
during the final project design. These enumerated mitigation measures are included as
part of GT-1. Other proposed mitigation measures are reflected in GT-2 through GT-5.
The February 3, 2012 final draft of the Building and Adjacent Structure Protection
Report prepared by the Connector Partnership indicates, “As soon as any of the above
buildings show a settlement value greater than 0.25 inches, compensation grouting will
be activated under the building in order to counteract the settlement developing under it.”
Compensation grouting was described as an effective structure protection and settlement
mitigation method. The report concludes that by applying grout to a settlement of 0.25
inches, the damage would be negligible.
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The April 2012 technical memorandum prepared by Ray Sosa and Bill Hansmith
explains the use of the Boscardin and Cording method, which predicts potential damage
to various structures. This technique was used to evaluate tunneling impacts on buildings
adjacent to the alignment as required by mitigation measure GT-1. This method has
gained worldwide acceptance in engineering practice. Further, by using compensation
grouting, “[T]he settlement under these buildings could be controlled to acceptable
levels.” Also, the use of pressurized face tunnel boring machines could “limit ground
loss at the tunnel face to minimal amounts.” Substantial evidence supports defendant’s
less than significant impact findings after implementation of the mitigation measures in
connection with potential subsistence. As with other issues, plaintiff’s remaining
subsidence contentions amount to an unpersuasive effort to have us reassess conflicting
engineering opinions; something we are prohibited from doing. (Western States
Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 572; Environmental Council of
Sacramento v. City of Sacramento, supra, 142 Cal.App.4th at p. 1042.)
C. Parking issues
There is no merit to defendant’s parking contentions. Relying upon technical
studies, the environmental impact report comprehensively evaluates the project’s
potential on-and-off street parking operational impacts and found such impacts to be
insignificant. The environmental impact report’s parking analysis relies upon appendix L
which contains a technical memorandum prepared by CDM and Intueor Consulting Inc.,
an Irvine, California traffic engineering firm. The degreed professionals from Intueor
Consulting, Inc were Farid S. Naguib, T.E, and Peter Kim, P.E. and T.E., both who had
over 20 years engineering experience.
For example, the environmental impact report finds: “transit service can allow a
neighborhood to grow while reducing its overall need for parking”; the project will
“provide new non-auto access to the area, and partially offset the parking demand in the
area.”; the project is not expected to create a demand for additional parking and can
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reduce existing parking demand by increasing transit access to the neighborhood; and
because of the displacement of several businesses in the Little Tokyo area, there would
be reduced parking demand. Thus, substantial evidence supports the finding that parking
impacts would be less than significant. Plaintiff’s analysis amounts to nothing more than
a request that we reweigh conflicting engineering analysis; something we are prohibited
from doing. (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p.
572; Environmental Council of Sacramento v. City of Sacramento, supra, 142
Cal.App.4th at p. 1042.)
D. Response To Comments
Plaintiff argues that defendant failed to adequately respond to comments the draft
environmental impact report posited during the public comment period. As defendant
correctly notes, this issue was not raised in the trial court and is thus forfeited. (El Morro
Community Assn. v. California Dept. of Parks & Recreation (2004) 122 Cal.App.4th
1341, 1351; A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th
1773, 1804.)
V. DEFENDANT’S CROSS-APPEAL
Defendant cross-appeals, contending its judgment on the pleadings motion should
have been granted. The trial court declined to rule on the judgment on the pleadings
motion which asserts the project is exempt from environmental review requirements
imposed by the California Environmental Quality Act. We are affirming the trial court’s
approval of defendant’s certification of the environmental impact report. There is no
effectual relief we can provide to defendant by reaching the merits of its exemption
contention. Thus, all of defendant’s exemption contentions are moot. (Eye Dog
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Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541;
Steiner v. Superior Court (2013) 220 Cal.App.4th 1479, 1485.)
VI. DISPOSITION
The judgment is affirmed. Defendant, The Los Angeles County Metropolitan
Transit Authority, shall recover its costs incurred on appeal from plaintiff, Japanese
Village LLC.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J.
KIRSCHNER, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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