Downtown Fresno Coalition v. City of Fresno CA5 ( 2016 )

Filed 7/14/16 Downtown Fresno Coalition v. City of Fresno CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
DOWNTOWN FRESNO COALITION,
F070845
Plaintiff and Appellant,
(Super. Ct. No. 14CECG00890)
v.
CITY OF FRESNO, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Fresno County. Dennis A.
Peterson, Judge.
Law Office of Sara Hedgpeth-Harris and Sara Hedgpeth-Harris; Chatten-Brown &
Carstens, Amy C. Minteer and Michelle N. Black for Plaintiff and Appellant.
Aleshire & Wynder, Anthony R. Taylor, John W. Fox, Mark W. Steres, and Lara
R. Leitner; Douglas T. Sloan, City Attorney, Francine M. Kanne, Chief Assistant City
Attorney, for Defendant and Respondent.
-ooOoo-
INTRODUCTION
This is an appeal from a judgment of the Superior Court of Fresno County denying
the writ petition of appellant Downtown Fresno Coalition (Coalition).
The Fulton Mall (Mall) in the heart of downtown Fresno is comprised of “ ‘city
streets,’ or portions thereof, on which vehicular traffic is . . . restricted in whole or in part
and which . . . [are] used exclusively or primarily for pedestrian travel.” (Sts. & Hy.
Code, § 11006.) Respondent City of Fresno (City) seeks to “reconstruct [the] Mall as a
complete street by reintroducing vehicle traffic lanes . . . .” Pursuant to the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)1 and the
Guidelines,2 City prepared a draft environmental impact report (EIR) for this proposed
Fulton Mall Reconstruction Project (Project). Following circulation of the draft EIR for
public review and completion of a final EIR, the Fresno City Council (City Council)
certified the final EIR, made written findings for each significant environmental effect
identified, and approved the Project on February 27, 2014. Coalition challenged these
actions and petitioned for a writ of mandamus on March 28, 2014. After a hearing on the
matter, the superior court denied the petition on October 21, 2014.
On appeal, Coalition makes two principal arguments. First, City approved the
Project before it conducted CEQA review. Second, the EIR was deficient. Specifically,
Coalition alleges the report did not include (1) a legally adequate analysis of the Project’s
1 Unless otherwise indicated, subsequent statutory citations refer to the Public
Resources Code.
2 The Guidelines refer to California Code of Regulations, title 14, section 15000
et seq. (Laurel Heights Improvement Assn. v. Regents of University of California (1988)
47 Cal. 3d 376, 391, fn. 2 (Laurel Heights I).) They are authorized by CEQA (§ 21083)
and accorded great weight in interpreting the statute except where they are clearly
unauthorized or erroneous (Sunset Sky Ranch Pilots Assn. v. County of Sacramento
(2009) 47 Cal. 4th 902, 907, fn. 3).
2.
impacts on air quality, greenhouse gas emissions, parks, traffic, and utilities; and (2) a
comparative assessment of the Project’s “traditional street” and “vignettes” options.
For the reasons set forth in this opinion, we reject these contentions and affirm the
judgment.
FACTUAL HISTORY
Between the late 19th and mid-20th centuries, Fulton Street was City’s
commercial epicenter, a downtown thoroughfare lined with numerous retailers, including
J.C. Penney, Sears, Gottschalks, and Montgomery Ward. By the 1950’s, however, Fulton
Street as well as the urban core at large experienced economic decline as a result of
suburbanization. In 1958, City hired architecture firm Victor Gruen Associates (Gruen)
to formulate a strategy to revitalize the core. Gruen proposed, inter alia, a pedestrian mall
on Fulton Street. On January 16, 1964, pursuant to the Pedestrian Mall Law of 1960 (Sts.
& Hy. Code, § 11000 et seq.), City Council passed an ordinance establishing the Mall.
The Mall is situated on a six-block-long portion of Fulton Street bounded by
Tuolumne Street to the northwest, Van Ness Avenue to the northeast, Inyo Street to the
southeast, and Broadway Street and H Street to the southwest. Within these borders,
Fulton Street, which runs parallel with Van Ness Avenue, intersects Merced Street,
Fresno Street, Mariposa Street, Tulare Street, and Kern Street. Fulton Street, Merced
Street, Mariposa Street, and Kern Street are pedestrianized,3 but Fresno Street and Tulare
Street remain open to motor vehicles.
The Mall officially opened to the public on September 1, 1964. As conceived by
landscape architect Garrett Eckbo, the Mall featured stained concrete pavement inlaid
with curvilinear ribbons of concrete aggregate; planting beds with shade trees, shrubs,
3 Many documents in the administrative record omit the street suffix when they
identify a specific pedestrianized segment of the Mall, i.e., “Fulton” for Fulton Street,
“Mariposa” for Mariposa Street, “Merced” for Merced Street, and “Kern” for Kern
Street. We employ these truncations in this opinion where appropriate.
3.
and flowers; water fountains, pools, and streams; shade pavilions, sitting areas, and “tot
lot” playgrounds; and sculptures and mosaic artwork. Foot traffic increased, which
stimulated and stabilized downtown retail activity for the rest of the decade. In addition,
Eckbo’s design garnered critical acclaim and recognition from both the American
Institute of Architects and the United States Department of Housing and Urban
Development (HUD).
The revitalization spurred by the Mall petered out in the 1970’s as suburbanization
continued. Downtown patronage further plummeted after major retailers relocated from
the Mall to the periphery.4 In 1989, City pinpointed various problems with the Mall in its
Central Area Community Plan,5 including the lack of accessible parking, poor
maintenance, inadequate security, and the influx of vagrants. City concluded “[t]he
function of the . . . Mall . . . as envisioned by . . . Gruen . . . was not realized and there is
no consensus as to its present function or future role.” Over 20 years later, an urban
decay study found the Mall and its vicinity sustained “economic disinvestment,”
manifested in “high vacancy rates, low lease rates, low retail sales, high crime rates, and
deteriorating physical conditions.”
On October 14, 2011, City released a draft of its Fulton Corridor Specific Plan
(FCSP).6 The FCSP considered the Mall “key to revitalizing Downtown Fresno” and
4 Montgomery Ward, J.C. Penney, and Gottschalks left the Mall in 1970, 1986, and
1988, respectively. Sears relocated before the Mall was established.
5 “Central Area” refers to the area surrounded by State Routes 41, 99, and 180. The
Mall is within these borders.
6 “Fulton Corridor” refers to the area “generally bounded to the north by Divisadero
Street, to the west by State Route 99, to the south by State Route 41, and to the east by N
Street, O Street, and the alley between M and N Streets.” The Mall is within these
borders.
The FCSP, along with the Downtown Neighborhoods Community Plan (DNCP)
and Downtown Development Code (see at p. 8, post), would replace the Central Area
Community Plan.
4.
described three “Mall options” to help “restor[e] . . . the Fulton Corridor into a
prosperous, vibrant place,” each to be “studied in greater detail by [an EIR] prepared for
th[e] [FCSP]”:
“[Option 1:] Reconnect the Grid on Traditional Streets. Completely
remove the existing Mall and introduce a narrow, two-lane, two-way
enhanced street with oversize sidewalks, stately trees, and on-street parking
. . . throughout the . . . Mall and its cross streets.
“[Option 2:] Reconnect the Grid with Vignettes. Introduce a two-way
street through the . . . Mall, keeping selected original features in their
original Mall contexts (‘vignettes’), in a manner that provides improved
retail visibility and some on-street parking. Transform Kern, Mariposa[,]
and Merced into enhanced streets with narrow traffic ways, ample
sidewalks, stately trees, and on-street parking.
“[Option 3:] Restoration and Completion. Keep Fulton . . . , Merced
. . . , Mariposa . . . , and Kern . . . pedestrian-only. Renovate and repair
them in their entirety, including their landscape and hardscape, and restore
the artwork.”
Of the three Mall options, Option 2 was identified as City’s preference because it “offers
a balance of significantly improving the economic function of Fulton,[7] while preserving
key features of the existing landscape.” Nonetheless, the FCSP noted (1) Options 1 and 3
were viable choices to be “environmentally assessed at a high level of detail as
alternatives to Option 2”; and (2) “[a]s part of the [FCSP] adoption process, the City
Council will evaluate and consider all of these [Mall] options and select one for inclusion
in the final, adopted [FCSP].”8
7 The FCSP projected annual gross retail sales of (1) $32.1 million if the Mall were
left alone; (2) $79.1 million if Option 1 were implemented; (3) $55.4 million if Option 2
were implemented; and (4) $38.2 million if Option 3 were implemented.
8 Prior to the release of the draft FCSP, the mayor remarked:
“[The] Mall is the linchpin to successful revitalization. While we should
not be thinking of [the] Mall as a ‘silver bullet’ to revitalization, we should
be thinking of it as the first major domino of revitalization that will have a
ripple effect throughout the entire [Fulton] [C]orridor. . . . [¶] . . . [¶]
5.
Sometime thereafter, City requested $4 million in Transportation, Community, and
System Preservation Program (TCSP) funds from the Federal Highway Administration
(FHWA) for the fiscal year 2012. City’s application specified:
“The [P]roject is the reconstruction of four blocks of streets in the heart of
Downtown Fresno, including lighting and bicycle and pedestrian
improvements. The [P]roject is located on . . . Fulton . . . between Fresno
and Tulare Streets . . . and the two blocks of Mariposa . . . between Van
Ness Avenue and Broadway Plaza . . . that intersect Fulton at its midpoint.
These streets have been closed to vehicle traffic since 1964. TCSP funds
will support all phases of the [P]roject, from preliminary engineering
through reconstruction. [¶] . . . [¶]
“. . . The [P]roject sits at the heart of the City’s major ongoing downtown
planning effort, the [FCSP]. A primary goal of the [FCSP], and in
particular of this [P]roject as a[n] [FCSP] implementation measure, is to
resuscitate the economy of what was once the ‘Main Street’ for [the City]
and the surrounding four-county area. The area’s 1.6 million residents
today are unserved by a vibrant, healthy urban center anywhere in the
region, and the desirability of the entire region is hindered by the lack of
this amenity. The economic impacts of downtown revitalization therefore
extend well beyond the streets affected and the Downtown area alone.
Downtown revitalization is now the City[’s] . . . core economic
development strategy.
“. . . Mobility and connectivity play an important role in any downtown’s
economic vitality, and the lack of multimodal access has hurt the economy
of [the] Mall. . . . [¶] . . . [¶] . . . Studies for the [FCSP] estimate that a
“. . . [R]econnecting the grid with traditional streets presents the best
economic benefits to the [C]ity. Restoration and completion presents the
best cultural benefits to the City. Reconnecting the grid with vignettes
attempts to take the best attributes from [O]ptions 1 and 3. [¶] For this
reason, I am recommending that the preferred alternative for the . . . Mall
be Option . . . 2 . . . . [¶] . . . [¶]
“. . . I want to be clear that, while I am making the [Mayoral]
Administration’s recommendation for the preferred alternative known
today, all three [Mall] options will be fully evaluated in the EIR process.
All three options will be equally weighted. Ultimately, the City Council
will vote to adopt the [FCSP], including their chosen alternative for the
future of the Mall. . . .” (Some capitalization omitted.)
6.
traditional street would improve retail sales along [the] Mall by 143[
percent] within five years. [¶] . . . [¶]
“. . . One of the primary strategies in the [FCSP] to encourage investment
and development is to revitalize the . . . Mall through improvements to its
form and function. Numerous private sector developers have identified
circulation on Fulton and its cross streets as necessary for significant
investment in the area. [¶] . . . [¶]
“. . . The [P]roject introduces complete street improvements on Fulton . . .
and Mariposa . . . , with approximately half the 80-foot right-of-way
dedicated to automobiles and bicycles, and half to pedestrians, including
lighting and other systems to benefit all modes. . . .”
The FHWA subsequently awarded $1 million in TCSP funds.
On March 8, 2012, City’s staff asked City Council to approve a resolution
allowing City to apply for $2 million in Measure C Transit Oriented Development (TOD)
funds “to support engineering and environmental work related to the reconstruction of
[the] Mall . . . .” City’s staff advised:
“The ultimate decision with regard to the . . . Mall’s future will be made by
the [City] Council through the adoption of the [FCSP] and supporting
environmental study. It is the [Mayoral] Administration’s goal to be ready
to implement the [City] Council’s decision as soon as possible after the
[FCSP] is adopted, a step which will require a significant amount of
detailed design and engineering work. Meanwhile, with the City’s budget
pressures in mind, the Administration hopes to maximize the contributions
of funding from sources other than the City[’s] General Fund to support the
necessary preconstruction and construction work.
“Consistent with the fact that the [City] Council has not yet determined the
future status of the . . . Mall, the proposed grant will advance the City’s
engineering and cost estimates for Mall options ranging from a
transformation back to a traditional street to the restoration of the existing
pedestrian mall design. Ultimately the [City] Council may approve a
different proposal for [the] Mall besides the three options identified in the
[FCSP]; therefore, the approval of this resolution does not commit the
[City] Council to any of the proposals currently set forth in the draft
[FCSP]. The proposed grant funds will not be used for construction, and
the proposed grant-funded design and engineering work does not commit
the City to any future action to implement any construction activities.”
7.
City Council approved the resolution. City applied for and received $474,810 in TOD
funds.
On or before March 19, 2012, City commenced the process to add the Mall to the
Federal Transportation Improvement Program and the Fresno Council of Governments
(COG) Regional Transportation Plan (RTP).
In April 2012, City issued a notice of preparation (NOP) demonstrating its intent
to prepare an EIR for the FCSP, the DNCP, and the Downtown Development Code.9 The
NOP reiterated the three Mall options mentioned in the draft FCSP “will be assessed in
the EIR.”10
Later, the United States Department of Transportation (DOT) announced the
availability of Transportation Investment Generating Economic Recovery (TIGER)
grants for the fiscal year 2013.11 The “Notice of Funding Availability” specified:
“I. Background [¶] . . . [¶]
“. . . TIGER Discretionary Grants are for capital investments in
surface transportation infrastructure and are to be awarded on a competitive
9 The DNCP would be a “highly articulated and informed extension” of City’s
General Plan, “ma[king] tangible and ready to implement” “[t]he General Plan’s direction
to generate activity centers and focus reinvestment in the center of the City” and
“provid[ing] policy direction for the FCSP . . . Area and the neighborhoods that surround
it.” The Downtown Development Code would implement the goals and policies of the
FCSP.
10 City initially hired environmental planning services firm Michael Brandman
Associates to prepare the EIR for the FCSP. Later, another company, FirstCarbon
Solutions, became the lead consultant and eventually prepared the EIR for the Project,
apparently in conjunction with Michael Brandman Associates. City indicated this change
stemmed from circumstances beyond its control. (See at p. 46, post.)
City also asked its designer, landscape architecture firm Royston, Hanamoto,
Alley & Abey, to consider all three Mall options, inter alia. Royston, Hanamoto, Alley &
Abey provided its insights on these options in an “Alternatives Analysis Report” dated
November 13, 2013, which is in the record.
11 City unsuccessfully applied for a TIGER grant for the fiscal year 2012.
8.
basis for projects that will have a significant impact on the Nation, a
metropolitan area, or a region. . . . [¶] . . . [¶]
“. . . To be funded, projects or elements of a project must have
independent utility, which means that the project provides transportation
benefits and is ready for its intended use upon completion of project
construction. [¶] . . . [¶]
“For projects receiving a TIGER Discretionary Grant, federal funds
(including the TIGER Discretionary Grant and any other federal
discretionary or formula funds) may be used for up to 80 percent of the
costs of the project. . . . [P]riority must be given to projects that use TIGER
Discretionary Grant funds to complete an overall financing package, and
. . . projects can increase their competitiveness for the purposes of the
TIGER program by demonstrating significant non-federal financial
contributions. . . . DOT will consider any non-federal funds, whether such
funds are contributed by the public sector (State or local) or the private
sector, as a local match for the purposes of this program. . . .
“. . . TIGER funds are only available for DOT to obligate through
September 30, 2014. The limited amount of time for which the funds will
be made available means that DOT, when evaluating applications, must
focus on whether or not a project is ready to proceed with obligation of
grant funds within the limited time provided. . . . TIGER funding expires
automatically after the deadline of September 30, 2014, if DOT does not
obligate these funds. This deadline is provided in law and waivers cannot
be granted under any circumstances. [¶] . . . [¶]
“II. Selection Criteria and Guidance on Application of Selection
Criteria [¶] . . . [¶]
“A. Primary Selection Criteria
“DOT will give priority to projects that are ready to proceed quickly
and have a significant impact on desirable long-term outcomes for the
Nation, a metropolitan area, or a region. . . . DOT is elevating project
readiness as a primary selection criterion for this round of TIGER
Discretionary Grants due to the legislatively-mandated timeline for
obligation of TIGER Discretionary Grant funds. . . . [¶] . . . [¶]
“. . . Project Readiness: For projects that receive funding in
this round of TIGER, DOT is required to obligate funds to those
projects by September 30, 2014, or the funding will expire. Priority
will be given to projects that can meet all local, State, and federal
9.
requirements by June 30, 2014. This is a shorter period of time for
obligation of funds than the comparable period for any prior round
of TIGER, and is therefore a primary concern to DOT that will be
treated as such during the evaluation and selection process. . . .
[¶] . . . [¶]
“C. Additional Guidance on Evaluation [¶] . . . [¶]
“. . . Other Environmental Reviews and Approvals
“. . . An application for a TIGER Discretionary Grant
must detail whether the project will significantly impact the
natural, social[,] and/or economic environment. The
application should demonstrate receipt (or reasonably
anticipated receipt) of all environmental approvals and
permits necessary for the project to proceed to construction
on the timeline specified in the project schedule and
necessary to meet the statutory obligation deadline, including
satisfaction of all federal, State, and local requirements . . . .
You should submit the information listed below with your
application: [¶] . . . [¶] . . . [e]nvironmental studies or other
documents . . . that describe in detail known project impacts,
and possible mitigation for those impacts. [¶] . . . [¶]
“. . . Support from all relevant State and local officials
is not required; however, you should demonstrate that there
are no significant legislative barriers to timely completion,
and that the project is broadly supported. [¶] . . . [¶]
“IV. Grant Administration
“DOT expects that each TIGER Discretionary Grant will be
administered by one of the Relevant Modal Administrations, pursuant to a
grant agreement between the TIGER Discretionary Grant recipient and the
Relevant Modal Administration. . . .”
“SUPPLEMENTARY INFORMATION: [¶] . . . [¶]
“. . . [T]he statutory timeframe for DOT to obligate funds under this
round of TIGER Discretionary Grants is the shortest of all of the rounds to
date. In order to meet this deadline, your application must demonstrate that
. . . the project can meet all local, State, and federal requirements by
June 30, 2014, in order for DOT to obligate funding in advance of
September 30, 2014. Each application must include a detailed statement of
10.
work, detailed project schedule, and detailed project budget. Due to the
short timeframe for obligation, project readiness and the risk of delays will
be treated as primary selection criteria in DOT’s evaluation process.”
The application submission period opened April 29, 2013, and closed June 3, 2013.
City requested a $15,924,620 TIGER grant. City’s application specified:
“The . . . [P]roject proposed in this application will address the
transportation problem that underlies [the] Mall’s stubborn economic
challenges. Research by leading experts in urban revitalization shows that
the lack of multimodal access for the buildings along Fulton makes it
difficult to attract sufficient investment to revitalize this area. One national
survey found that 90[ percent] of downtowns with pedestrian malls became
successful when they reopened the malls to vehicles while retaining
pedestrian amenities. A complete street that mixes travel modes, as
opposed to a limited-mode pedestrian mall, is the best way to maximize
‘eyes on the street’ and foot traffic. Several factors have led to the decline
of Downtown Fresno over the decades, but transportation issues—visibility
and access—are by far the greatest factors today in the . . . Mall’s
persistently and acutely anemic economy. [¶] . . . [¶]
“. . . $4 million in nonfederal funds[, i.e., $250,000 in private funds and
$3,750,000 in local public funds,] is committed to this [P]roject. . . .
[¶] . . . [¶]
“The . . . [P]roject is to reconstruct the . . . Mall . . . as a complete street by
reintroducing vehicle traffic lanes to the existing pedestrian mall. The
affected rights-of-way include the pedestrian areas between buildings
located on the former City streets of Fulton, Mariposa, Merced[,] and Kern,
which function as an integrated pedestrian mall. . . .
“The . . . [P]roject has two build [options]. [Option ]1 consists of reopening
the Mall with two-way streets, with one lane of vehicular traffic in each
direction alongside bicycle and pedestrian modes. One 11[-]foot vehicle
travel lane would run in each direction, with a parallel parking lane of
[nine] feet on both sides of the streets. A 20[-]foot sidewalk on both sides
of the streets would allow for walking and seating, landscaping, lighting,
and public art.
“[Option ]2 consists of reconnecting the street grid as in [Option ]1, but
would include rebuilding distinctive elements of the Mall in five to six
specific locations, known as ‘vignettes.’ Within the vignettes there would
be no parking lane, and the existing Mall landscape elements (sculptures,
fountains, pavement pattern, trees, etc.) would be kept maximally intact.
11.
One 11-foot vehicle travel lane would run in each direction and would bend
and curve through the vignettes. Outside the vignette areas the street would
straighten, and the landscape would include a [nine-]foot parallel parking
lane and a pedestrian-only walking, seating, vegetation, and public art area
20 feet in width on one or both sides of the street. The remaining space on
each side of the street would be dedicated to pedestrian travel, seating,
vegetation[,] and artwork. [¶] . . . [¶]
“A preliminary engineer’s estimate has been prepared, providing a detailed
breakdown of the [P]roject’s costs. The estimated total construction cost is
$19,924,620. . . . [¶] . . . [¶]
“This application seeks funding only for the construction phase of the . . .
[P]roject. . . . Already the [P]roject’s preconstruction phase has been
awarded $1 million from FHWA’s . . . TCSP . . . program, and $474,810
from the local . . . TOD . . . program. . . . [¶] . . . [¶]
“Review[] of the [P]roject under . . . CEQA . . . [is] ongoing. [¶] . . . [¶]
The majority of work . . . has been completed, and draft documents are
expected to be circulated to the public in the fall of 2013. . . . [¶] . . . [¶]
. . . This application seeks TIGER funding for construction costs only, not
preconstruction costs such as environmental analysis. [¶] . . . [¶]
“Legislative approval from the . . . City Council will be necessary to enter
contracts and expend construction funds.[12] Under California law, such
approval may not be obtained until environmental impact analysis is
complete. City Council adoption actions are expected to occur by March
2014, once this review is complete.[13]” (Fns. omitted.)
Attached to the application were numerous letters of support from the mayor, federal and
state officials, property and business owners, and community leaders. None were from
City Council.
12 Pursuant to City’s charter, City Council is vested with all powers of legislation in
municipal affairs. (Fresno City Charter, article V, § 500.)
13 City’s TIGER application outlined the following timeline: (1) completion of the
draft EIR in August 2013; (2) circulation of the draft EIR for public review from
September 2013 to November 2013; and (3) certification of the final EIR and approval of
the Project by City Council in March 2014.
12.
On June 20, 2013, City’s staff asked City Council to approve a resolution
accepting $1 million in TCSP funds. City’s staff advised (1) acceptance of TCSP funds
did not commit City to a particular option for the Mall; (2) FHWA “had the ability to call
for the return/payback of [TCSP] funds if the [P]roject does not go to construction within
10 years”; (3) “there was no General Fund money involved”; and (4) the TCSP funds
“would be matched with . . . TOD funds.”14 Following deliberation, City Council
approved the resolution “accept[ing] . . . grant funding from the FHWA to support the
preliminary engineering of the . . . Mall . . . .” The resolution’s preamble stated City
“will enter into an agreement with the FHWA for development of the [P]roject.”
In September 2013 DOT awarded the nearly $16 million TIGER grant to City.
On October 15, 2013, City issued an NOP demonstrating its intent to prepare an
EIR only for the Project. An initial study released concurrently determined the Project
may “[s]ubstantially degrade the existing visual character or quality of the [Mall] and its
surroundings” and “[c]ause a substantial adverse change in the significance of a historical
resource.” By contrast, impacts on air quality, greenhouse gas emissions, parks, traffic,
and utilities were deemed less than significant:
“3.3 – Air Quality [¶] . . . [¶]
“Air Quality Plan [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] Less than significant impact. The SJVAPCD[15]
specifies that a project is conforming to the applicable attainment or
maintenance plan if it: [¶] 1. Complies with all applicable SJVAPCD
rules and regulations, [¶] 2. Complies with all applicable control
measures from the applicable plans, and [¶] 3. Is consistent with the
growth forecast in the applicable plans. [¶] . . . [¶]
14 The TCSP award required $200,000 in nonfederal matching funds.
15 “SJVAPCD” refers to the San Joaquin Valley Air Pollution Control District.
13.
“Under the first criterion, a project needs to comply with all applicable
SJ[V]APCD rules and regulations. Compliance with adopted SJVAPCD
rules and regulations is a requirement under the law, and therefore, the
implementation of [Option] 1 will comply with all adopted SJVAPCD rules
and regulations. The applicable rules and regulations are described
above.[16] [Option] 1 would comply with the first criterion.
“The second criterion states that a project must comply with all applicable
control measures from the applicable SJVAPCD attainment plans. These
attainment plans include the 2004 Extreme Ozone Attainment
Demonstration Plan, 2007 Ozone Plan, 2007 PM10 Maintenance Plan, . . .
2008 PM2.5 Plan, and 2012 PM2.5 Plan. . . .[17]
“The 2004 Extreme Ozone Attainment Demonstration Plan includes control
measures to reduce a precursor of ozone, NOx, including NOx reductions
from indirect sources.
“The 2007 Ozone Plan contains measures to reduce ozone and particulate
matter precursor emissions to bring the [San Joaquin Valley] Air Basin into
attainment wit[h] the federal [eight]-hour ozone standard.
“The 2007 PM10 Maintenance Plan ensures the San Joaquin Valley[] will
continue to attain the EPA’s [(Environmental Protection Agency)] PM10
standard.
“The 2008 PM2.5 Plan builds upon the strategy adopted in the 2007 Ozone
Plan to bring the Air Basin into attainment of the 1997 national standards
for PM2.5. This Plan is a continuation of the SJVAPCD’s strategy to
improve the air quality in the Air Basin.
“The 2012 PM2.5 Plan addresses EPA’s most recent 24-hour standard of
35 ug/m3.
“The applicable control measures have been adopted as SJVAPCD rules
and regulations. Therefore, implementation of [Option] 1 will comply with
16 These included Rule 4002 (National Emission Standards for Hazardous Air
Pollutants), Rule 4102 (Nuisance), Rule 4641 (Cutback, Slow Cure, and Emulsified
Asphalt, Paving and Maintenance Operations), Regulation VIII (Fugitive PM10
Prohibitions), Rule 9120 (Transportation Conformity), and Rule 9510 (Indirect Source
Review).
17 See footnote 18, post.
14.
all adopted SJVAPCD rules and regulations and thus . . . the applicable
control measures. [Option] 1 would comply with the second criterion.
“Finally, the Project is consistent with the growth forecast in the San
Joaquin Valley Air Quality Attainment Plan. The proposal for [the] Mall to
reintroduce two-way, two-lane street within [the] Mall and designate the
streets as collector streets has been included in the approved 2011 RTP
Amendment #2 as Project ID FRE500768. The 2011 RTP has control
measures to reduce emissions from on-road sources by incorporating
strategies such as high occupancy vehicle interventions, transit, and
information-based technology interventions. These measures that have
been implemented by the California Air Resources Board [(ARB)] and
Fresno COG affect [Option] 1 indirectly by regulating the vehicles that the
residents and patrons may use and regulating public transportation. The
control measures would not directly apply to the construction and operation
of [Option] 1. Since the [Project], including [Option] 1, is included in the
approved RTP, [Option] 1 is consistent with the growth forecast for the
region. Furthermore, the implementation of [Option] 1 would not propose
any additional traffic generating land uses. [Option] 1 would result in the
re-distribution of existing traffic volumes in the vicinity of [the] Mall, but
the [P]roject will not directly increase traffic volumes. [Option] 1 would
comply with the third criterion.
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impact on conflicting with the applicable air quality plan as
described above for [Option] 1 would be the same for [Option] 2.
“Cumulative Impacts
“Less than significant impact. As identified above, the SJVAPCD
prepared attainment and maintenance plans to bring the Air Basin into
attainment with the ambient air quality standards. As cumulative
development occurs throughout Downtown Fresno, each development will
be required to comply with the SJVAPCD rules and regulations.
Furthermore, each development will be required to be consistent with the
growth forecasted and accounted for in the SJVAPCD attainment and
maintenance plans. As stated above, the implementation of [Options] 1 or
2 will conform to the applicable attainment and maintenance plans.
Cumulatively, [Options] 1 or 2 in conjunction with cumulative
development within Downtown Fresno is expected to result in less than
significant cumulative impacts on the applicable air quality plan.
Furthermore, development of [Option] 1 or 2 would contribute less than
cumulatively significant impacts on the applicable air quality plan.
15.
“Air Quality Standards/Violations [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] Less than significant impact. Since criteria pollutants
are pollutants with ambient air quality standards, analysis within this
section is related to construction and operational criteria pollutant impacts.
“Construction Pollutants
“Thresholds [¶] The . . . SJVAPCD . . . provides recommended
significance thresholds in their Guide for Assessing and Mitigating Air
Quality Impacts . . . . The SJVAPCD’s thresholds are provided in Table
7.[18] The SJVAPCD’s thresholds are utilized for the majority of CEQA
impact analysis . . . . [¶] . . . [¶]
“Construction Emissions [¶] Construction emissions can vary substantially
from day to day, depending on the level of activity, the specific type of
activity, and the prevailing weather conditions. The methodology
developed for the purposes of this quantitative air quality analysis was
based on information available at the time of analysis; actual equipment
and activity intensity at the time of construction may vary from those
analyzed in this document. However, it is anticipated that the level of
activity analyzed is representative of activities that will occur during
construction. The main sources of air pollutants associated with the Project
include off-road construction equipment exhaust, worker trips, and fugitive
PM10 and PM2.5 emissions. The annual emissions for [P]roject demolition
activity were estimated using CalEEMod [(California Emissions Estimator
Model)]. The annual emissions for [P]roject construction were estimated
using the Roadway Construction Emissions Model, version 7, developed by
Sacramento Metropolitan Air Quality Management District. The assumed
construction phase durations are shown in Table 8 and Table 9.[19]
[¶] . . . [¶]
18 These annual thresholds are 10 tons for oxides of nitrogen (NOx); 10 tons for
reactive organic gases (ROG); 15 tons for particulate matter (PM10); and 15 tons for
particulate matter (PM2.5).
19 The projected construction durations for Fulton are 15 working days for
demolition, 30 working days for soil excavation and export, 60 working days for storm
drain replacement, 30 working days for curb and gutter, 30 working days for asphalt and
rock, and 60 working days for sidewalk.
The projected construction durations for Mariposa, Merced, and Kern are 10
working days for demolition, 19 working days for soil excavation and export, 30 working
16.
“Based on the following roadway widths and lengths to be improved and
the Project layout, the emissions analysis assumed the following
construction activity:
“Fulton . . . . [¶] . . . Approximately 2,747 feet of length (0.52 mile)
would be paved, [¶] . . . Approximately 5.0 acres would be disturbed
during the course of the Fulton . . . construction, [¶] . . . A maximum of 0.1
acre would be disturbed on any one day, [¶] . . . Project construction would
begin in 2014,
“. . . Demolition would result in 6,867 tons of material removed; 18 tons
per truck, 382 one-way trips for materials hauling; average [eight]-miles per
one-way trip for a total of 6,112 truck trip miles[,]
“. . . Soils Excavation [¶] . . . Option 1 soils excavation would result in
4,477 cubic yards (cyd) of materials; 16 cyd per truck at [eight] miles per
one-way trip for a total of 4,480 soils hauling truck miles. [¶] . . . Option 2
soils excavation would result in 4,070 cyd of materials; 16 cyd per truck at
[eight] miles per one-way trip for a total of 4,070 soils hauling truck miles.
“. . . Storm Drain replacement would result in 2,440 cyd of onsite materials
movement with no export or import,
“. . . Curb and Gutter would result in 286 cyd of soils removal, at [eight]
cyd per truck and [eight] miles per one-way trip for a total of 288 on-road
hauling miles, [¶] . . . [¶]
“. . . Rock [¶] . . . Option 1 . . . would result in emplacement of 3,000 cyd
(5,264 tons) of rock; 20 tons per truck at [eight] miles per one-way trip for
4,208 miles of rock hauling trips. [¶] . . . Option 2 . . . would result in
emplacement of 2,727 cyd (4,785 tons) of rock; 20 tons per truck at [eight]
miles per one-way trip for 3,840 miles of rock hauling trips.
“. . . Asphalt [¶] . . . Option 1 . . . would result in emplacement of 1,522
cyd (2,979 tons) of asphalt; 22 tons per truck at [eight] miles per one-way
trip for 2,160 miles of asphalt hauling trips. [¶] . . . Option 2 . . . would
result in emplacement of 1,384 cyd (2,708 tons) of asphalt; 22 tons per
truck at [eight] miles per one-way trip for 1,968 miles of asphalt hauling
trips.
days for storm drain replacement, 15 working days for curb and gutter, 15 working days
for asphalt and rock, and 25 working days for sidewalk.
17.
“. . . Sidewalks [¶] Option 1 . . . would result in 1,394 cyd of concrete
emplacement; [eight] cyd per truck at [eight] miles per one-way trip for a
total of 2,784 concrete hauling truck miles. [¶] . . . Option 2 . . . would
result in 1,549 cyd of concrete emplacement; [eight] cyd per truck at [eight]
miles per one-way trip for a total of 3,104 concrete hauling truck miles.
“. . . [Mariposa, Merced, and Kern20] [¶] . . . Approximately 1,410 feet
of length (0.27 mile) would be paved, [¶] . . . Approximately 2.6 acres
would be disturbed during the . . . construction, [¶] . . . A maximum of 0.1
acre would be disturbed on any one day, [¶] . . . Project construction would
begin in 2014,
“. . . Demolition [¶] . . . Mariposa . . . demolition would result in 25,335
[cyd] (1,900 tons) of materials removed; 18 tons per truck at [eight] miles
per one-way trip for a total of 1,696 materials hauling truck miles. [¶] . . .
Kern and Merced . . . demolition would result in 47,004 [cyd] (3,525 tons)
of materials removed; 18 tons per truck at [eight] miles per one-way trip for
a total of 3,136 materials hauling truck miles.
“. . . Soils Excavation [¶] . . . Mariposa . . . soils excavation would result
in 1,239 . . . cyd . . . of materials; 16 cyd per truck at [eight] miles per one-
way trip for a total of 1,232 soils hauling truck miles. [¶] . . . Kern and
Merced . . . soils excavation would result in 991 . . . cyd . . . of materials; 16
cyd per truck at [eight] miles per one-way trip for a total of 992 soils
hauling truck miles.
“. . . Storm Drain replacement would result in 1,253 cyd of onsite materials
movement with no export or import,
“. . . Curb and Gutter would result in 141 cyd of soils removal, at [eight]
cyd per truck and [eight] miles per one-way trip for a total of 144 on-road
hauling miles, [¶] . . . [¶]
“. . . Rock [¶] . . . Mariposa . . . would result in emplacement of 830 cyd
(1,456 tons) of rock; 20 tons per truck at [eight] miles per one-way trip for
1,168 miles of rock hauling trips. [¶] . . . Kern and Merced . . . would
result in emplacement of 664 cyd (1,166 [tons]) of rock; 20 tons per truck
at [eight] miles per one-way trip for 944 miles of rock hauling trips.
“. . . Asphalt [¶] . . . Mariposa . . . would result in emplacement of 421
cyd (824 tons) of asphalt; 22 tons per truck at [eight] miles per one-way trip
for 592 miles of asphalt hauling trips. [¶] . . . Kern and Merced . . . would
20 The parameters for Mariposa, Merced, and Kern applied to both Options 1 and 2.
18.
result in emplacement of 337 cyd (660 tons) of asphalt; 22 tons per truck at
[eight] miles per one-way trip for 480 miles of asphalt hauling trips.
“. . . Sidewalks would result in 918 cyd of concrete emplacement; [eight]
cyd per truck at [eight] miles per one-way trip for a total of 1,840 concrete
hauling truck miles. [¶] . . . [¶]
“Results [¶] The Project’s construction emissions (equipment exhaust and
dust generation) during construction are compared with the SJVAPCD’s
significance thresholds . . . . [U]nmitigated emissions during construction
do not exceed the daily or annual significance thresholds.[21] [¶] . . . [¶]
“Operational Pollutants
“Operational Carbon Monoxide Hotspots [¶] [Option] 1 may be
considered significant if a CO hot spot intersection analysis determines that
CO concentrations generated either directly or indirectly by the [P]roject
cause a localized violation of the State CO [one]-hour standard of 20 ppm
[(parts per million)], State CO [eight]-hour standard of [nine] ppm, federal
CO [one]-hour standard of 35 ppm, or federal CO [eight]-hour standard of
[nine] ppm.
“Localized high levels of carbon monoxide (CO hot spot) are associated
with traffic congestion and idling or slow moving vehicles. To provide a
worst-case scenario, CO concentrations are estimated at [P]roject-impacted
intersections, where the concentrations would be the greatest.
“Using the CALINE4 model, potential CO hot spots were analyzed at the
[Fresno Street/Van Ness Avenue and Ventura Avenue/H Street]
intersections . . . . The[se] intersections were chosen because they
projected to operate at LOS[22] E or worse prior to any potential mitigation.
There are several inputs to the CALINE4 model. One input is the traffic
volumes, which is from the [P]roject-specific traffic report. The traffic
volumes with the [P]roject, which includes [Option] 1, were used for the
buildout scenario as well as emission factors generated using the
EMFAC2007 model for the year 2015 and 2035.
21 The initial study provides a helpful table summarizing these findings.
22 “LOS” refers to level of service, a “qualitative description of traffic flow from the
perspective of motorists.” There are six LOS levels (A, B, C, D, E, and F). LOS A
“represent[s] the least congested traffic conditions” while LOS F “represent[s] the most
congested traffic conditions. LOS D is considered “the acceptable level of traffic
congestion on major streets” in Fresno.
19.
“. . . [T]he estimated [one]-hour and [eight]-hour average CO
concentrations at [these] intersections . . . are below the state and federal
standards.[23] Therefore, there are no CO hotspots anticipated from the
reassigned [P]roject and cumulative traffic emissions. [¶] . . . [¶]
“Operational conditions under [Option] 1 would result in less than
significant concentrations of carbon monoxide.
“Mitigation Measures
“Construction and operational emissions associated with the
implementation of [Option] 1 would result in less than significant impacts
to air quality in relation to criteria pollutants. The following mitigation
measures are recommended to ensure air emissions are minimized.
“Construction Fugitive Dust
“MM AIR-1[:] During construction, in addition to [SJVAPCD] Regulation
VIII requirements for dust control, the [P]roject shall also implement the
following additional dust control measures: [¶] . . . Limit traffic speeds on
unpaved roads to 15 mph; [¶] . . . Install sandbags or other erosion control
measures to prevent slit runoff to public roadways from sites with a slope
greater than one percent. [¶] . . . Install wheel washers for all ex[]iting
trucks, or wash off all trucks and equipment leaving the site; [¶] . . . Install
wind breaks at windward sides[] of construction areas; and [¶] . . .
Suspend excavation and grading activity when winds exceed 20 mph.
Regardless of wind speed, an owner/operator must comply with Regulation
VIII’s 20 percent opacity limitation. [¶] . . . Post a publicly visible sign
with the telephone number and person to contact at the lead agency
regarding dust complaints. This person shall respond and take corrective
action within 48 hours. [SJVAPCD]’s phone number shall also be visible
to ensure compliance with applicable regulations.
“Construction Equipment Exhaust
“MM AIR-2[:] During construction, the [P]roject shall also implement the
following additional construction equipment exhaust control measures: [¶]
. . . Idling times shall be minimized either by shutting equipment off when
not in use or reducing the maximum idling time to [five] minutes (as
required by the California airborne toxics control measure Title 13, Section
23 These estimates are (1) 3.0 ppm for one hour and 2.1 ppm for eight hours at
Fresno Street and Van Ness Avenue; and (2) 2.8 ppm for one hour and 1.9 ppm for eight
hours at Ventura Avenue and H Street.
20.
2485 of California Code of Regulations [CCR]). Clear signage shall be
provided for construction workers at all access points. [¶] . . . All
construction equipment shall be maintained and properly tuned in
accordance with manufacturer’s specifications. All equipment shall be
checked by a certified visible emissions evaluator. [¶] . . . The [P]roject
shall develop a plan demonstrating that the off-road equipment (more than
50 horsepower) to be used in the construction . . . (i.e., owned, leased, and
subcontractor vehicles) would achieve a project wide fleet-average 20
percent NOx reduction and 45 percent PM10 reduction compared to the most
recent ARB fleet average. Acceptable options for reducing emissions
include the use of late model engines, low-emission diesel products,
alternative fuels, engine retrofit technology, after-treatment products, add-
on devices such as particulate filters, and/or other options as such become
available.
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impact to air quality in relation to criteria pollutants as
described above for [Option] 1 would be the same for [Option] 2. . . .
Operational emissions for [Option] 2 would be the same as [Option] 1.
[¶] . . . [¶]
“Results [¶] The Project’s construction emissions (equipment exhaust and
dust generation) during construction are compared with the SJVAPCD’s
significance thresholds . . . . [U]nmitigated emissions during construction
do not exceed the daily or annual significance thresholds. [¶] . . . [¶]
“Mitigation Measures
“Construction and operational emissions associated with the
implementation of [Option] 2 would result in less than significant impacts
to air quality in relation to criteria pollutants. [MM AIR-1 and MM AIR-2]
are recommended to ensure air emissions are minimized. [¶] . . . [¶]
“Cumulative Impacts
“Less than significant impact. Construction emissions associated with
[Option] 1 or 2 could cumulatively combine with other emissions in the Air
Basin. However, the SJVAPCD has determined that a project-level
exceedance of any of the criteria pollutant thresholds would have a
significant cumulative impact on the air quality in the Air Basin by
jeopardizing the Air Basin’s attainment of state and federal standards. If a
project does not result in a project-level exceedance of any criteria pollutant
threshold, the project would not result in a cumulatively considerable
contribution to cumulative emissions within the Basin, and therefore, would
21.
have a less than significant cumulative impact. Since [Options] 1 or 2
would not generate construction emissions that would exceed criteria
pollutant thresholds, [Option] 1 or 2 would result in a contribution of air
emissions that are considered less than cumulatively considerable.
“In addition, . . . operational CO concentrations at the Ventura [Avenue]
and H Street intersection, which is considered an intersection representing
potential worst-case CO concentrations under the Cumulative Plus Project
Condition, would not exceed the state or federal CO standard. Therefore,
the implementation of [Option] 1 or 2 would result in less than significant
cumulative impacts associated with CO concentrations.
“Overall, [Option] 1 or 2 would result in a less than significant cumulative
air quality impact related to violating air quality standards or contributing
substantially to an existing or projected air quality violation.
“Criteria Pollutant [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] Less than significant impact. The evaluation of potential
cumulatively considerable net increase of any criteria pollutant is addressed
. . . above. The evaluation . . . above determined that [Option] 1 would
result in a less than significant cumulative impact on criteria pollutants.
Therefore, the determination . . . is less than significant cumulative impact
on criteria pollutants.
“[Option] 2 [¶] Less than significant impact. As described above, the
determination of less than significant cumulative impacts on criteria
pollutants under [Option] 2 is provided above . . . .
“Cumulative Impacts
“Less than significant impact. As described above, the determination of
less than significant cumulative impacts on criteria pollutants is provided
above . . . .
“Sensitive Receptors [¶] . . . [¶]
“Those who are sensitive to air pollution include children, the elderly, and
persons with preexisting respiratory or cardiovascular illness. A sensitive
receptor is considered to be a location where a sensitive individual could
remain for 24 hours, such as residences, hospitals, or convalescent
facilities. . . . [W]hen assessing the impact of pollutants with [one]-hour
and [eight]-hour standards (such as carbon monoxide), commercial and/or
22.
industrial facilities would be considered sensitive receptors for those
purposes.
“The nearest sensitive receptors are the existing residences that are located
in the Hotel Californian, Pacific Southwest Building, and Masten Towers.
“There are three toxic air contaminants/hazardous air pollutants that are
considered applicable to the [Project]. These pollutants include Mobile
Source Air Toxics (MSAT), Naturally Occurring Asbestos (NOA), and
Diesel Particulate Matter (DPM.)
“Project Impacts
“[Option] 1 [¶] Less than significant impact. Implementation of
[Option] 1 would not expose sensitive receptors to substantial
concentrations of MSAT, NOA, or DPM . . . .
“Mobile Source Air Toxics [¶] The 2009 Interim Guidance Update on
Mobile Source Air Toxic Analysis . . . , published by the Federal Highway
Administration (FHWA), was utilized to determine the [P]roject’s potential
for MSAT impacts. The FHWA has developed a tiered approach for
analyzing MSAT, which are based on three levels of analysis: [¶] 1. No
analysis for projects with no potential for meaningful MSAT effects; [¶]
2. Qualitative analysis for projects with low potential MSAT effects; or [¶]
3. Quantitative analysis to differentiate alternatives for projects with higher
potential for MSAT effects. [¶] Under the first level, projects with no
potential for meaningful MSAT effects, the types of projects included are
. . . [¶] . . . [¶] . . . [p]rojects with no meaningful impacts on traffic
volumes or vehicle mix.
“Analysis shows that the implementation of [Option] 1 would have no
meaningful impacts on traffic volumes or vehicle mix for the [P]roject area
. . . . However, [Option] 1 would reassign existing trips in the [P]roject
area. [Option] 1 does not propose any additional traffic generating land
uses. Since [Option] 1 includes two-way vehicular streets, it is anticipated
that the reintroduced roadways associated with this [option] would serve
existing traffic by providing access to existing businesses within [the] Mall,
but would not induce additional travel upon opening as described in the
[P]roject traffic report . . . . Based on a review of the [P]roject traffic
report, except for Fulton . . . , [Option] 1 would slightly increase average
daily traffic on seven of the 15 roadway segments that were evaluated. The
maximum increase would be 72 average daily trips (ADT) compared to the
baseline conditions and 410 ADT under cumulative plus project conditions
compared to cumulative no project conditions. Fulton . . . between Inyo . . .
23.
and Tuolumne . . . would experience 210 [ADT] under baseline plus project
conditions and 2,310 ADT under cumulative plus project conditions.
“The apparent increase is not a trip increase from [Option] 1, but is a result
of reassignment of existing trips through the [P]roject area. All trips would
be existing in the [P]roject area under [Option] 1. Existing trips within the
[P]roject area would be rerouted from existing travel paths through the
[P]roject segments.
“[Option] 1 would not increase the number of trips on the [P]roject area
roadways compared to baseline conditions. However, [Option] 1 would
reassign existing trips to a new location, the . . . Mall. The relocation of
existing trips may have a low potential for MSAT emissions.
“A qualitative analysis provides a basis for identifying MSAT emissions.
The qualitative assessment presented below is derived in part from a study
conducted by the FHWA entitled A Methodology for Evaluating Mobile
Source Air Toxic Emissions Among Transportation Project Alternatives
. . . . [¶] . . . [¶]
“The amount of MSAT emitted under [Option] 1 would be proportional to
the vehicle miles traveled, or VMT. The VMT estimated for [Option] 1 is
the same as for the baseline condition and the cumulative no project
condition[;] however, [Option] 1 increases the efficiency of the roadway
and attracts rerouted trips from elsewhere in the transportation network.
This relocation of VMT would lead to higher MSAT emissions for [Option]
1 along the [Project] alignment, along with a corresponding decrease in
MSAT emissions along the parallel routes. The emissions increase is offset
somewhat by lower MSAT emission rates due to increased speeds . . .
according to EPA’s MOVES2010b model . . . . Emissions will likely be
lower than present levels in the design year as a result of EPA’s national
control programs that are projected to reduce annual MSAT emissions by
over 80 percent between 2010 and 2050. Local conditions may differ from
these national projections in terms of fleet mix and turnover, VMT growth
rates, and local control measures. However, the magnitude of the EPA-
projected reductions is so great (even after accounting for VMT growth)
that MSAT emissions in the study area are likely to be lower in the future
in nearly all cases.
“The reintroduced travel lanes contemplated as part of [Option] 1 will have
the effect of moving some traffic closer to nearby residences; therefore,
there may be localized areas where ambient concentrations of MSAT could
be higher compared to the no build [options]. The localized increases in
MSAT concentrations would likely be most pronounced along the
24.
expanded roadway sections that would be built at [the] Mall. However, the
magnitude and the duration of these potential increases compared to the
baseline or cumulative no project conditions cannot be reliably quantified
due to incomplete or unavailable information in forecasting project-specific
MSAT health impacts. In sum, when a roadway is reintroduced, the
localized level of MSAT emissions for [Option] 1 could be higher relative
to the no build condition, but this could be offset due to increases in speeds
and reductions in congestion in the [P]roject area (which are associated
with lower MSAT emissions). Also, MSAT will be lower in other
locations when traffic shifts away from them. However, on a regional
basis, EPA’s vehicle and fuel regulations, coupled with fleet turnover, will
over time cause substantial reductions that, in almost all cases, will cause
region-wide MSAT levels to be significantly lower than today.
“Furthermore, analysis shows [Option] 1 would generate minimal air
quality impacts for the Clean Air Act criteria pollutants . . . and has not
been linked with any special MSAT concerns.
“Moreover, EPA regulations for the vehicle engines and fuels will cause
overall MSAT emissions to decline significantly over the next several
decades. Based on regulations now in effect, an analysis of national trends
with EPA’s MOBILE6.2 model forecasts a combined reduction of 72
percent in the total annual emission rate for the priority MSAT from 1999
to 2050 while vehicle miles of travel are projected to increase by 145
percent. This will both reduce the background levels of MSAT as well as
the possibility of even minor MSAT emissions from this [P]roject.
“Overall, the implementation of [Option] 1 would create less than
significant impacts related to MSAT emissions.
“Naturally Occurring Asbestos [¶] During construction in areas that
contain naturally occurring asbestos (NOA)-containing rock formations,
asbestos can be released into the air and pose a health hazard. The
Department of Conservation, Division of Mines and Geology (DMG) has a
published guide for generally identifying areas that are likely to contain
NOA . . . . A review of DMG’s map showing areas more likely to have
rock formations containing NOA indicates that the . . . Mall site is not in an
area that is likely to contain NOA. In addition, the DMG map indicates that
there are no areas within City . . . likely to contain NOA. Therefore,
disturbance of NOA is not a concern for the implementation of [Option] 1.
“Diesel Particulate Matter [¶] Construction activities would also involve
the use of diesel-powered construction equipment, which emit DPM. Risk
assessments for residential areas exposed to toxic air contaminants (TACs)
25.
such as DPM are generally based on a 70-year period of exposure.
Construction emissions would occur in 2014 and 2015, and construction is
anticipated to be completed within 12 months. Since the use of
construction equipment would be temporary and would not be close to the
70-year timeframe, exposure of sensitive receptors to TACs would not be
substantial. Emissions of DPM would not be substantial enough to be
considered a health risk.
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impacts on sensitive receptors as described above for
[Option] 1 would be the same for [Option] 2.
“Cumulative Impacts [¶] Less than significant impact. The
implementation of [Option] 1 or 2, which proposed the addition of roadway
segments, will redistribute [ADT]. This redistribution will result in a minor
increase in traffic volumes along certain roadway segments and decreases
along other roadway segments. As described above . . . , the [Project]
would result in less than significant impacts on sensitive receptors. In
addition, the [P]roject’s contribution to potential cumulative impacts would
be less than cumulatively considerable. Therefore, the implementation of
[Option] 1 or 2 would result in a less than significant cumulative impact.
“Odors [¶] . . . [¶]
“Two situations create a potential for odor impact. The first occurs when a
new odor source is located near an existing sensitive receptor. The second
occurs when a new sensitive receptor locates near an existing source of
odor. . . . [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] Less than significant impact. The development of
[Option] 1 would allow the addition of roadways within [the] Mall. The
addition of roadways [is] not considered a source of objectionable odors
according to the [SJVAPCD]. . . . During [P]roject operations, the [P]roject
could produce odors as a result of increased vehicles within [the] Mall;
however, the anticipated increase in vehicles is not expected to be
substantial as addressed . . . above. Therefore, a potential increase in odors
from vehicular traffic would be less than significant.
“During construction, onsite diesel powered equipment and vehicles will
emit diesel particular matter, which is odorous to some. Also during
construction, there would be short-term emissions of ROGs during asphalt
paving. These odors will dissipate with distance and should not reach an
26.
objectionable level at nearby residences. Impacts would be less than
significant.
“[Option] 2 [¶] Less than significant impact. The determination of a less
than significant odor impact as described above under [Option] 1 would be
the same for [Option] 2.
“Cumulative Impacts
“Less than significant impact. The implementation of [Options] 1 or 2
would not add a source of objectionable odors. Therefore, the contribution
of [Options] 1 or 2 to potential significant cumulative odor impacts would
be less than cumulatively considerable, and thus less than cumulatively
significant. [¶] . . . [¶]
“3.7 – Greenhouse Gas Emissions [¶] . . . [¶]
“Greenhouse Gas Emissions [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] Less than significant impact. An individual project does
not generate enough greenhouse gas emissions to significantly influence
global climate change. Rather, global climate change is a cumulative
impact. This means that a project may participate in a potential impact
through its incremental contribution combined with the contributions of all
other sources of greenhouse gases. In assessing cumulative impacts, it
must be determined if a project’s incremental effect is ‘cumulatively
considerable.’ See CEQA Guidelines sections 15064(h)(1) and 15130. To
make this determination the incremental impacts of the project must be
compared with the effects of past, current, and probable future projects. To
gather sufficient information on a global scale of all past, current, and
future projects in order to make this determination is a difficult if not
impossible task. [¶] . . . [¶]
“Generate Greenhouse Gas Emissions
“Greenhouse gas emissions for transportation projects can be divided into
those produced during construction and those produced during operations.
Construction greenhouse gas emissions include emissions produced as a
result of material processing, emissions produced by onsite construction
equipment, and emissions arising from traffic delays due to construction.
These emissions will be produced at different levels throughout the
construction phase; their frequency and occurrence can be reduced through
27.
innovations in plans and specifications and by implementing better traffic
management during construction phases.
“Construction
“[Option] 1 would emit greenhouse gases from upstream emission sources
and direct sources (combustion of fuels from worker vehicles and
construction equipment). An upstream emission source (also known as life
cycle emissions) refers to emissions that were generated during the
manufacture of products to be used for construction of the Project.
Upstream emission sources for [Option] 1 include but are not limited to the
following: emissions from the manufacture of steel and/or emissions from
the transportation of construction materials in other countries. The
upstream emissions were not estimated because they are not within the
control of [Option] 1 and to do so would be speculative at this time.
Additionally, the California Air Pollution Control Officers Association
(CAPCOA) White Paper on CEQA & Climate Change supports this
conclusion by stating, ‘The full life-cycle of GHG [greenhouse gas]
emissions from construction activities is not accounted for . . . and the
information needed to characterize [life-cycle emissions] would be
speculative at the CEQA analysis level’ (CAPCOA 2008). Therefore,
pursuant to CEQA Guidelines Section 15144 and 15145, upstream/life
cycle, emissions are speculative and no further discussion is necessary.
“The emissions of CO2 from [Option] 1 construction equipment and worker
vehicles were calculated using the Road Construction Emissions Model,
Version 7, and the CalEEMod emissions model. . . . [Option] 1 would
result in approximately 910.62 metric tons of CO2 (MTCO2e) in 2014.
[Option] 1 would also emit methane and nitrous oxide from construction
equipment; however, emissions of methane and nitrous oxide are negligible
compared to CO2 emissions.
“Construction emissions would be short term in nature and would occur
before the year 2020. AB 32[24] requires that annual emissions in the State
of California be reduced to 1990 levels by the year 2020. Although some
greenhouse gases can remain in the atmosphere for long periods, AB 32
does not regulate concentrations.
24 “AB 32” refers to California’s Global Warming Solutions Act of 2006.
28.
“Operation
“Greenhouse gas emissions were estimated using the web-based data access
EMFAC2011 . . . . The proposed Fulton . . . between Tuolumne . . . and
Inyo . . . would result in 210 average annual daily trips (AADT) under
baseline plus project condition and 2,310 AADT under cumulative with
project condition. . . . [T]he [P]roject does not propose any additional
traffic generating land uses and would only redistribute trips. Therefore,
development under [Option] 1 would not result in any additional vehicle
miles traveled compared to the no project scenario.
“Since [Option] 1 would not result in any additional vehicle miles traveled,
emissions estimates . . . are the same for all [options]. However, [Option] 1
is expected to improve the LOS at intersections within the vicinity of [the]
Mall. [Option] 1 would create additional travel pathways through the
[P]roject area, and provide more direct routes through the [P]roject area,
thereby improving mobility and potentially reducing regional VMT.
Improvement in traffic flow would reduce criteria pollutants and
greenhouse gas emissions because emissions on a grams-per-mile basis
decrease while the speed increases, with a peak efficiency at about 45 to 50
miles per hour. Therefore, emissions of greenhouse gases would be lower
with . . . [Option] 1 and higher with the no project alternative.
“. . . The highest levels of carbon dioxide from mobile sources, such as
automobiles, occur at stop-and-go speeds (0-25 miles per hour) and speeds
over 55 mph; the most severe emissions occur from 0-25 miles per hour.
To the extent that a project relieves congestion by enhancing operations and
improving travel times in high congestion travel corridors greenhouse gas
emissions, particularly CO2, may be reduced.
“In summary, the implementation of [Option] 1 is considered to result in a
less than significant impact on greenhouse gas emissions from construction
and operation activities[.]
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impacts on greenhouse gases as described above under
[Option] 1 would be the same as described for [Option] 2. The specific
amount of construction-related greenhouse gas emissions is slightly lower
(909.53 MTCO2e in 2014) for [Option] 2 compared to [Option] 1.
“Cumulative Impacts
“Less than significant impact. Cumulative development in Downtown
Fresno will result in the generation of greenhouse gases during construction
29.
and operational activities. Implementation of [Option] 1 or 2 would result
in the generation of greenhouse gas emissions during construction, but is
expected to reduce greenhouse gases during operation of the [P]roject by
relieving congestion through enhanced operations and improving travel
times. The contribution of greenhouse gases during construction activities
under [Option] 1 or 2 would contribute to cumulative greenhouse gas
emissions; however, this contribution would be less than cumulatively
considerable because the emissions would not be ongoing and would occur
over a short duration. Therefore, [Option] 1 or 2 would result in less than
significant cumulative impacts on greenhouse gases.
“Conflict with Plan, Policy, or Regulation that Reduces Emissions
[¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] No impact. As described above . . . , [Option] 1 would
likely reduce the future-year greenhouse gas emissions generated by trips
through the [P]roject area. Therefore, [Option] 1 would also lower fuel
consumption associated with travel in the area. Implementation of [Option]
1 would not conflict with any applicable greenhouse gas plan, and
therefore, [Option] 1 would result in no impact on an applicable plan.
“[Option] 2 [¶] No impact. The determination of no impact on an
applicable greenhouse gas plan as described above for [Option] 1 would be
the same for [Option] 2.
“Cumulative Impacts [¶] No impact. Since [Option] 1 or 2 would not
conflict with an applicable greenhouse gas plan, neither [Option] 1 or 2
would contribute to cumulative impacts on an applicable plan. Therefore,
[Option] 1 or 2 would result in no cumulative impacts on an applicable
greenhouse gas plan. [¶] . . . [¶]
“3.14 – Public Services [¶] . . . [¶]
“Parks [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] No impact. The [P]roject does not include new parks or
alterations to existing facilities. Reintroducing roadways in place of the . . .
Mall would not require new park facilities to be provided or require directly
altering existing government facilities because the introduction of new
roadways would not directly affect service ratios or performance objectives
30.
related to parks. Therefore, [P]roject implementation would not result in
impacts related to the parks.
“[Option] 2 [¶] No impact. The determination of no impacts to parks
described for [Option] 1 would be the same for [Option] 2.
“Cumulative Impacts [¶] No impact. The [P]roject does not include new
parks or alterations to existing facilities. Reintroducing roadways in place
of the . . . Mall would not require new park facilities to be provided or
require direct[ly] altering existing governmental facilities because the
introduction of new roadways would not directly affect service ratios or
performance objectives related to parks. Therefore, [P]roject
implementation would not result in cumulatively considerable impacts.
[¶] . . . [¶]
“3.15 – Recreation
“Increase Use of Parks and Recreational Facilities Physical Effect on
Environment [¶] . . . [¶]
“The City . . . currently has a mix of regional, community, neighborhood,
pocket, and mini parks within the city limits. A limited number of parks
are provided in the downtown area. No parks are located within the
immediate vicinity of [the] Mall. There are two recreational areas for
children within [the] Mall. These areas are tot lots with playground
equipment and sand areas. One of the tot lots is located within [the] Mall
immediately north of Kern . . . and encompasses 966 square feet of active
play equipment area. The second tot lot is also within [the] Mall
immediately south of Merced . . . and encompasses 806 square feet of
active play equipment area. Today most, though not all, of this equipment
remains functional for the children to use.
“Project Impacts
“[Option] 1 [¶] Less than significant impact. The implementation of . . .
[Option] 1 for the proposed . . . [P]roject will result in direct effects to the
existing tot lots that are used for public recreation. The two tot lots
encompass approximately 1,772 square feet of active play equipment area.
[Option] 1 would result in the relocation of the tot lots and they will be
consolidated into one larger tot lot within the Project Study Area at the
Fresno County Economic Opportunities Commission campus near the
intersection of Mariposa and Congo Alley. During the construction period,
the removal of this resource would create a temporary adverse effect. The
provision of an equal square footage of active play space within the Project
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Study Area will reduce the long-term effect so that the effect is not adverse.
The long-term restoration or replacement of the playground equipment will
provide a beneficial recreational effect because all equipment will be
functional for the children to use.
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impacts to other recreational facilities under [Option] 2
would be the same as described above for [Option] 1.
“Cumulative Impacts [¶] Less than significant impact. The provision
of an equal square footage of active play space within the Project Study
Area will reduce the long-term effect so that the effect is not adverse. The
long-term restoration or replacement of the playground equipment will
provide a beneficial recreational effect because all equipment will be
functional for the children to use. Therefore, the [P]roject would be less
than cumulatively considerable.
“3.16 – Transportation and Traffic
“Traffic Increase [¶] . . . [¶]
“Study Area[25] [¶] The selected Study Area was determined through
consultation with City . . . and Caltrans[26] District 6 staff, the ‘City of
Fresno Traffic Impact Study Report Guidelines’ . . . , and the transportation
impact analysis conducted for the . . . DNCP . . . and . . . FCSP. . . .
[¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] Less than significant impact. [Option] 1 includes the
addition of two-lane, two-way streets within [the] Mall. This [Option] does
not propose any additional traffic generating land uses. With the addition
25 The initial study evaluated the following intersections: (1) Stanislaus Street and
Van Ness Avenue; (2) Stanislaus Street and Fulton Street; (3) Stanislaus Street and
Broadway; (4) Tuolumne Street and Broadway; (5) Tuolumne Street and Fulton Street;
(6) Tuolumne Street and Van Ness Avenue; (7) Fresno Street and H Street; (8) Fresno
Street and Fulton Street; (9) Fresno Street and Van Ness Avenue; (10) Tulare Street and
H Street; (11) Tulare Street and Fulton Street; (12) Tulare Street and Van Ness Avenue;
(13) Inyo Street and H Street; (14) Inyo Street and Fulton Street; (15) Inyo Street and
Van Ness Avenue; (16) Ventura Avenue and H Street; (17) Ventura Avenue and
Broadway; and (18) Ventura Avenue and Van Ness Avenue.
26 “Caltrans” refers to the California Department of Transportation.
32.
of new streets, [Option] 1 would cause some shifts in local traffic patterns.
To evaluate this shift in traffic patterns, a locally validated version of the
2010 Fresno COG TDF[27] model was used to estimate the re-distribution of
traffic in the study area. The Fresno COG TDF model confirmed that
opening [the] Mall to vehicular traffic would not affect traffic volumes
outside the study area. The model also confirmed that opening the [M]all
to vehicular traffic resulted in minor changes to traffic patterns, primarily
on Fulton . . . and parallel facilities, such as Van Ness Avenue.
“A baseline plus project condition was evaluated for the AM and PM peak
hour at the study area intersections. The project condition was opening the
Mall to traffic. . . . [T]he AM and PM peak hours would continue to
operate at LOS D or better during the baseline plus project condition.
Therefore, the implementation of [Option] 1 would result in a less than
significant impact on traffic conditions.
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impact on traffic conditions under [Option] 2 would be the
same as described for [Option] 1.
“Cumulative Impacts [¶] Less than significant impact with mitigation
measures incorporated. Under Cumulative Conditions, the traffic
evaluation uses local and regional planning and funding documents to
identify the reasonably foreseeable changes to the transportation system
and development patterns in the Fresno region. The cumulative analysis
includes the future implementation of the DNCP and FCSP by the year
2035. In addition to the DNCP and FCSP, the cumulative projects
include[] a financially constrained list of transportation projects for which
funding has been identified or is reasonably expected to be available within
the RTP planning horizon of 2035. All of these projects are included in the
2035 Fresno COG TDF model used in this cumulative conditions analysis.
The Cumulative No Project conditions analysis reflects anticipated
conditions without the proposed . . . Project. This includes the cumulative
transportation and land use development changes identified above,
including projected development within the project area consistent with the
DNCP and FCSP.
“A cumulative no project condition was evaluated for the AM and PM peak
hour at the study area intersections. The traffic report and analysis
described that were five intersections that would operate at LOS E or F
during the AM and/or PM peak hour under the Cumulative No Project
27 “TDF” means “travel demand forecasting.”
33.
condition. These five intersections include the following: [¶] 1. Stanislaus
Street/Broadway Street [¶] 2. Tuolumne Street/Broadway Street [¶]
3. Fresno Street/H Street [¶] 4. Fresno Street/Van Ness Avenue [¶]
5. Ventura Avenue/H Street[.]
“A Cumulative Plus Project . . . Conditions was evaluated for the AM and
PM peak hour at the study area intersections. Given there would be
intersections that would not operate at an acceptable level of service under
the Cumulative No Project Condition, the . . . Traffic Impact Study Report
Guidelines were reviewed to determine the significance criteria for projects
with intersections not operating [at] acceptable levels prior to adding a
proposed project. According to the . . . Traffic Impact Study Report
Guidelines, a significant impact would occur if the project increases the
average delay for a study intersection that is already operating at an
unacceptable level. Based on the evaluation in the . . . Mall Supplemental
Traffic Analysis – 2025 General Plan, there would be four intersections that
would operate at an unacceptable level of service during the AM and/or PM
peak hour under the Cumulative Plus Project Conditions. . . .
“Stanislaus Street/Broadway Street [¶] The technical calculations show
that the overall intersection delay at this intersection decreases slightly from
165 seconds to 159 seconds during the PM peak hour with the proposed
[P]roject. Therefore, the [P]roject would not have a cumulatively
significant impact at this location.
“Tuolumne Street/Broadway Street [¶] The technical calculations show
that the overall intersection delay at this intersection increases from 541
seconds to 723 seconds during the PM peak hour with the proposed
[P]roject. Therefore, the [P]roject would have a potentially significant
impact at this location.
“Fresno Street/H Street [¶] At this intersection, the traffic delay would
decrease with the proposed [P]roject during the AM and PM peak hours.
Therefore, the [P]roject would not have a cumulatively significant impact at
this location[.]
“Ventura Avenue/H Street [¶] The Cumulative No Project and
Cumulative Plus Project traffic volumes at this intersection indicate that the
proposed [P]roject is not expected to result in a substantial change in traffic
at this location. In the AM peak hour, two turning movements have a
minor increase in traffic volumes that can be attributed to rounding and
model variation. In the PM peak hour, one turning movement has a minor
increase while one has a minor decrease that can also be attributable to
rounding and model variation. In the AM peak hour, the change in traffic
34.
volumes through the intersection is an increase of less than one percent,
which is well within observed variation in day-to-day traffic. Therefore,
this change is not considered cumulatively significant. In the PM peak
hour, there is no net change in traffic volumes through the intersection.
Similarly, this change is not considered cumulatively significant.
“To reduce the [P]roject’s contribution to a potential significant traffic
impact at the Tuolumne Street/Broadway Street intersection, the following
mitigation measure is required.
“MM TR-1[:] Prior to the Tuolumne Street/Broadway Street intersection
degrading to worse than LOS D, the City . . . shall modify the existing
signal to allow the split phase operations on northbound and southbound
Broadway Street. If the City . . . adopts a revision to the current LOS
standard of LOS D and allows LOS F for Downtown Fresno intersections
prior to the intersection degrading to worse than LOS D, then the
recommended improvement would not be required.
“The implementation of the recommended improvement would reduce the
delay at the Tuolumne Street/Broadway Street intersection to 33 seconds,
and the intersection would operate at LOS C that complies with the City’s
current LOS standard. Therefore, the proposed [P]roject’s contribution to a
potential cumulative impact is less than cumulatively considerable, thus
less than cumulatively significant. [¶] . . . [¶]
“3.17 – Utilities and Service Systems
“A technical report on utilities in the Downtown Fresno area was prepared.
This report is [the] Fulton Corridor Specific Plan and Community Plan EIR
Technical Report prepared . . . in February 2013 . . . . In addition,
memorandum letters were prepared by the City . . . to supplement the
information in the Report identified above. These memorandum letters
include ‘Water Supply and Delivery Infrastructure Within The Downtown
Plans Area’ . . . and ‘Response to Questions Related to DNCP and FCSP
Environmental Studies’ . . . . The following information was obtained from
the Report and memorandum letters.
“The utilities in the . . . Mall vicinity include water, sewer, drainage, natural
gas, electricity, and telecommunication systems (i.e., cable and telephone).
The water, sewer, and drainage facilities are owned by the City . . . while
the natural gas and electricity is owned by Pacific, Gas & Electric, and
telecommunications systems in the . . . Mall Project Study Area are not
known.
35.
“Water distribution and transmission facilities are currently located within
Federal Alley east of [the] Mall and within Home Run Alley and Congo
Alley west of [the] Mall, respectively, between Inyo . . . and Tuolumne
. . . . These facilities range from [six]-inch to 12-inches in diameter.
Additional water distribution lines also ranging in diameter from [six]-inch
to 12-inches are located within Inyo . . . , Kern . . . , Tulare . . . , Mariposa
. . . , Fresno . . . , and Tuolumne . . . . Each of the existing water
distribution and transmission facilities identified above are currently
adequate to serve the existing uses . . . .
“Public and private sewer distribution facilities are located within the . . .
Mall vicinity. Public sewer facilities include up to 30-inch lines within
Merced . . . between Van Ness Avenue and H Street, Kern . . . from Van
Ness Avenue to Home Run Alley, and Home Run Alley between Kern . . .
and Inyo . . . . Private sewer lines are located within Federal Alley, Home
Run Alley, and Congo Alley except for the portion of Home Run Alley
south of Kern . . . . Each of the existing sewer facilities identified above is
currently adequate to serve the existing uses. No sewer lift stations are
located within the rights-of-way of [the] Mall . . . . The sewer facilities,
while adequately sized to serve existing uses, are of very advanced age and
in poor condition. The City[’s] . . . Department of Public Utilities has plans
to rebuild these facilities with local funds. The sewer replacement project
is anticipated to occur simultaneously with the implementation of the . . .
Project.
“Storm drain facilities are located within the . . . Mall vicinity. A storm
drain is located under [the] Mall between Inyo . . . and Tuolumne . . . .
Addition[al] storm drains are located within Merced . . . between Van Ness
[Avenue] and H Street, Fresno . . . between Van Ness [Avenue] and H
Street, Mariposa . . . between the Federal Alley and H Street, Tulare . . .
between Home Run Alley and H Street, Kern . . . between Home Run Alley
and Federal Alley, and along Home Run Alley between Kern . . . and
Tulare . . . . Each of the existing drainage distribution facilities identified
above is currently adequate to serve the existing uses . . . .
“Natural gas, electricity, and telecommunication systems are located in the
. . . Mall vicinity. The specific locations of these facilities are not known at
this time; however, it is known that some of these facilities are located
within [the] Mall.
“Wastewater Treatment [¶] . . . [¶]
“As a condition of a Clean Water Grant issued by the Federal government,
the City . . . was designated the Regional Sewer Agency for the Fresno-
36.
Clovis Metropolitan Area (FCMA) in 1966. The City operates the
Regional Wastewater Reclamation Facility (RWRF) under a Joint Powers
Agreement with Clovis and the County of Fresno. The 3,000-acre[]RWRF
was originally constructed in 1947, and is located inside the City limits but
within a non-contiguous area situated approximately 3.5 miles southwest of
the Chandler Executive Airport. Over the past 40 years, the RWRF has
been expanded and rehabilitated several times, most recently in 2010 when
process units were added to the facility to address high organic
concentrations within incoming wastewater. The treatment plant includes a
number of redundant facilities that allow for regular maintenance and
provide backup capacity in the event of equipment failure. The RWRF
currently provides secondary treatment and has a rated capacity of 80
million gallons per day, with equipment redundancy to accommodate
maintenance schedules or equipment failures. Effluent disposal occurs
primarily through a combination of infiltration beds located at the RWRF
and agricultural irrigation . . . . [C]urrent treatment at RWRF is less than
75 percent of the current capacity.
“Project Impacts
“[Option] 1 [¶] No impact. Under this [option], no wastewater would be
directly generated, and there would be no direct impacts on wastewater
treatment capacity or wastewater treatment requirements. Based on
information in the Fulton Mall Urban Decay Study . . . , the reopening of
Fulton . . . and adding on-street parking under [Option] 1 would induce
growth through the reoccupation of existing office and retail vacant space
within the vicinity of [the] Mall through the year 2035. According to
CEQA Guidelines Section 15126.2(d), ‘[i]t must not be assumed that
growth in any area is necessarily beneficial, detrimental, or of little
significance to the environment.’ The anticipated growth inducement and
its potential effects are addressed as part of cumulative impacts because the
future growth that would occur from the reoccupation of existing office and
retail vacant space is considered to occur as part of future projects. . . .
“[Option] 2 [¶] No impact. The determination of no impact on
wastewater treatment capacity or wastewater treatment requirements as
discussed above for [Option] 1 would be the same for [Option] 2. In
addition, [Option] 2 would also result in a similar inducement of growth
through the reoccupation of existing vacant office and retail space. . . .
“Cumulative Impacts [¶] No impact. Implementation of cumulative
development will result in increases in the generation of wastewater in
Downtown Fresno. Part of this cumulative increase is the projected
increase from the reoccupation of existing office and retail vacant space in
37.
the vicinity of [the] Mall as well as throughout Downtown Fresno. With
cumulative development through 2035 throughout Downtown Fresno, a
greater amount of vacant office and retail space is projected to be
reoccupied within the vicinity of [the] Mall with the implementation of
[Option] 1 or 2 compared to without the implementation of [Option] 1 or 2.
This potential increase in the reoccupation of vacant office and retail space
would be part of future growth and the implementation of future cumulative
projects throughout the City. The anticipated increase in the reoccupation
with [Option] 1 in the year 2035 would be approximately 188,254 square
feet of office use and approximately 80,000 square feet of retail use more
than without the addition of streets and parking within [the] Mall. The
anticipated increase in the reoccupation with [Option] 2 in the year 2035
would be approximately 188,254 square feet of office and approximately
51,300 square feet of retail use more than without the addition of streets
and parking within [the] Mall.
“Cumulative development within the City through the year 2035 is
anticipated to generate more wastewater than the current capacity of the
existing RWRF . . . . [C]umulative growth through 2035 is anticipated to
generate approximately 87 million gallons per day (mgd) which is greater
than the current treatment capacity of 80 mgd. Since treatment capacities
are projected to be greater than the current treatment capacity, cumulative
development throughout the City through 2035 could result in the
exceedance of wastewater treatment requirements.
“Part of the future cumulative increase in wastewater generation includes
the wastewater generation from cumulative growth that is anticipated to be
induced by the development of [Option] 1 or 2. As stated above, [Option] 1
would result in the inducement of the reoccupation of approximately
188,254 square feet of office use and approximately 80,000 square feet of
retail use. The potential reoccupation of space under [Option] 1 would
increase existing wastewater flows to the RWRF. For the purpose of this
evaluation, wastewater flows from the reoccupation of currently vacant
space is based on a worst-case assumption that employees generate the
same amount of wastewater as residents. Under this assumption, a
wastewater generation factor of 110 gallons per capita per day was used for
employees . . . . Employees for an office use and retail use are based on a
national average employment density for office uses of 291 square feet per
employee and based on 400 square feet per person for retail
employment. . . . Based on the employment densities and the cumulative
growth from reoccupying vacant space, the increase in office use would
generate approximately 647 employees and the increase in retail use would
generate approximately 200 employees for a total of 847 employees.
38.
Therefore, based on the additional 847 employees at a wastewater
generation factor of 110 gallons per capita per day, there would be
approximately 0.093 mgd generated. This increase in wastewater
generation from the portion of cumulative growth that would be induced as
a result of implementing [Option] 1 would contribute to the cumulative
exceedance of the current wastewater treatment capacity and could result in
the cumulative exceedance of wastewater treatment requirements. Since
[Option] 2 would result in a slightly less inducement of the reoccupation of
vacant office and retail space, the portion of cumulative growth associated
with [Option] 2 would result in less generation of wastewater compared to
[Option] 1; however, wastewater generation from the induce[d] growth
associated with [Option] 2 would still contribute to significant cumulative
impacts on the existing treatment capacity at RWRF and could result in the
cumulative exceedance of wastewater treatment requirements. Growth that
will occur from the reoccupation of existing vacant space and from new
developments will be associated with future cumulative projects. The
implementation of these cumulative projects are anticipated to result in
significant cumulative impacts on the current wastewater treatment capacity
and could result in significant cumulative impacts associated with
wastewater treatment requirements of the Regional Water Quality Control
Board (RWQCB).
“Although cumulative impacts may be significant, the implementation of
[Option] 1 or 2 would not directly generate wastewater, and therefore,
[Option] 1 or 2 would not contribute to the potential significant cumulative
impacts projected with the implementation of future growth anticipated
through the year 2035. Therefore, the implementation of [Option] 1 or 2
would result in no cumulative impacts to existing wastewater treatment
capacities or potential exceedances of wastewater treatment requirements
regulated by the RWQCB.
“Water or Wastewater Treatment Facilities [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] No impact. Under this [option], no wastewater would be
directly generated. Therefore, the implementation of [Option] 1 would
result in no impacts on existing wastewater treatment facilities. [¶] . . . [¶]
“This [option] would result in the demand for water supplies for irrigating
the proposed landscaping as well as maintaining fountains. However, this
demand for irrigation and maintenance is expected to be less than the
current demand because there will be fewer fountains to maintain. The
number of trees to irrigate under [Option] 1 is the same number as the
39.
existing trees. Due to a reduction in water requirements under [Option] 1
compared to existing conditions, the existing water lines that are located in
and adjacent to [the] Mall will be adequate to convey water to the proposed
landscaping and fountains. No new water lines will be required as part of
[Option] 1. Therefore, [Option] 1 would result in no impacts to existing
water facilities. [¶] . . . [¶]
“[Option] 2 [¶] No impact. The determination of no impact as discussed
for [Option] 1 is the same for [Option] 2.
“Cumulative Impacts [¶] No impact. . . . [Option] 1 or 2 would result in
no cumulative impacts on wastewater facilities.
“Implementation of cumulative development will result in increases in the
demand for water in Downtown Fresno. Part of this cumulative increase is
the projected increase from the reoccupation of existing office and retail
vacant space in the vicinity of [the] Mall as well as throughout Downtown
Fresno. With cumulative development through 2035 throughout
Downtown Fresno, a greater amount of vacant office and retail space is
projected to be reoccupied within the vicinity of [the] Mall with the
implementation of [Option] 1 or 2 compared to without the implementation
of [Option] 1 or 2. This potential increase in the reoccupation of vacant
office and retail space would be part of future growth and the
implementation of future cumulative projects throughout Downtown
Fresno. The anticipated increase in the reoccupation with [Option] 1 in the
year 2035 would be approximately 188,254 square feet of office use and
approximately 80,000 square feet of retail use more than without the
addition of streets and parking within [the] Mall. The anticipated increase
in the reoccupation with [Option] 2 in the year 2035 would be
approximately 188,254 square feet of office and approximately 51,300
square feet of retail use more than without the addition of streets and
parking within [the] Mall.
“. . . [C]umulative development in Downtown Fresno could result in a
significant impact on existing water facilities. . . . [A] new [three-]million
gallon water storage tank and a new regional transmission main would be
required to serve future development in Downtown Fresno. In addition,
cumulative development in Downtown Fresno would need to replace some
[six]-inch diameter water lines with [eight]-inch diameter water lines to
improve hydraulic conditions and meet demands and fire service levels.
The water storage tank is planned for a property located on H Street,
southeast of Ventura Avenue. The regional transmission main would
convey water from Well Site 172 and other wells in the vicinity to turnouts
in the downtown area, including locations near [the] Mall.
40.
“Part of the future cumulative increase in water demand includes the water
demand from cumulative growth that is anticipated to be induced by the
development of [Option] 1 or 2. . . . [T]he growth that occurs from the
reoccupation of current vacant office and retail space within the vicinity of
[the] Mall will also result in a significant impact on existing water facilities,
thus also requiring the new [three-]million gallon water storage tank and
new regional transmission main discussed above. In addition, some [six]-
inch diameter water lines may need to be replaced with [eight]-inch
diameter water lines to improve hydraulic conditions to meet demands and
fire service levels. . . . [T]he addition of the water supply facilities
identified above will be adequate to support the re-occupancy of the
buildings along [the] Mall.
“Although cumulative impacts on water facilities may be significant, the
implementation of [Option] 1 or 2 would not directly increase the existing
demand for water; therefore, [Option] 1 or 2 would not contribute to the
potential significant cumulative impacts on existing water facilities
projected with the implementation of future Downtown Fresno growth
anticipated through the year 2035. Therefore, the implementation of
[Option] 1 or 2 would result in no cumulative impacts on existing water
facilities.
“Stormwater Drainage Facilities [¶] . . . [¶]
“Storm drain facilities are located within the . . . Mall vicinity. A storm
drain is located under [the] Mall between Inyo . . . and Tuolumne . . . .
storm drains are located within Merced . . . between Van Ness [Avenue]
and H Street, Fresno . . . between Van Ness [Avenue] and H Street,
Mariposa . . . between Federal Alley and H Street, Tulare . . . between
Home Run Alley and H Street, Kern . . . between Home Run Alley and
Federal Alley, and along Home Run Alley between Kern . . . and Tulare
. . . . Each of the existing drainage distribution facilities identified above
are currently adequate to serve the existing uses . . . .
“The . . . [M]all is currently served by 95 storm drain inlets that collected
surface flows from the [P]roject area. Adjacent streets such as Fresno and
Tulare . . . also have their own storm drain facilities that convey flows from
the roadway. Both the onsite and adjacent storm drain facilities presently
connect with the existing storm drain facilities located throughout [the]
Mall vicinity. These existing storm drain facilities are connected to one of
several larger east-west and northeast-southwest trending trunk lines, which
eventually connect with a series of existing drainage basins located along S.
West Street in the southwestern portion of the City . . . . As previously
stated, the existing subsurface drainage distribution facilities identified
41.
above are currently adequate to serve the existing uses found in the
[P]roject area.
“Project Impacts
“[Option] 1 [¶] No impact. Since [Option] 1 would result in generally the
same amount of impervious surfaces within [the] Mall compared to existing
conditions, there would not be an increase in stormwater flow from [the]
Mall. Although [Option] 1 would not result in an increase in stormwater
flow, [Option] 1 will modify the location of the existing storm drain inlets.
The existing storm drain inlets that are located within the future street (i.e.,
between the proposed curbs and gutters of each street) will be relocated to
the curb face because the future streets will be designed to include a crown
in the middle of the street so that surface water will flow to the curb face.
“The [P]roject will also include the reconstruction of the sidewalks adjacent
to the future streets. Therefore, there may be relocation of additional
existing storm drain inlets. The inlets may remain in the sidewalks or the
sidewalk may be graded so that surface water flows to the street and
eventually to the storm drain inlets at the curb face.
“Although the implementation of [Option] 1 will modify the location of the
stormwater inlets throughout [the] Mall, the existing subsurface drainage
distribution facilities will continue to be adequate to convey storm water
from the . . . Mall vicinity after the implementation of [Option] 1.
“[Option] 2 [¶] No impact. The determination of no impacts to existing
storm drain distribution facilities as discussed above for [Option] 1 would
be the same for [Option] 2.
“Cumulative Impacts [¶] No impact. The implementation of [Option] 1
or 2 would not result in the construction of new storm water drainage
distribution facilities or expansion of existing facilities. Therefore,
[Option] 1 or 2 would result in no cumulative impacts to existing storm
water drainage facilities.
“Water Supplies [¶] . . . [¶]
“Water supplies to the . . . Mall vicinity are limited by the existing water
distribution facilities in the [P]roject vicinity. These facilities are currently
located within Federal Alley east of [the] Mall and within Home Run Alley
and Congo Alley west of [the] Mall, respectively, between Inyo . . . and
Tuolumne . . . . These facilities range from [six]-inch to 12-inches in
diameter. Additional water distribution lines also ranging in diameter from
42.
[six]-inch to 12-inches are located within Inyo . . . , Kern . . . , Tulare . . . ,
Mariposa . . . , Fresno . . . , and Tuolumne . . . .
“Based on a review of the City[’s] . . . Urban Water Management Plan . . . ,
the City’s water supply is provided by groundwater, treated surface water,
recycled water, and conservation efforts. The City currently has existing
water entitlements through a contract with the Fresno Irrigation District for
water from the Kings River and a contract with the U.S. [B]ureau of
Reclamation for water from the San Joaquin River. . . . [F]uture water
supplies will increase primarily due to increases in the treated surface
water, recycled water and addition[al] conservation efforts while decreasing
reliance on groundwater supplies. The supplies identified by the City . . .
are estimated to meet the City’s demand from future growth beyond the
next 20 years.
“Project Impacts
“[Option] 1 [¶] No impact. The implementation of [Option] 1 would
result in the demand for water supplies for irrigating the proposed
landscaping as well as maintaining fountains. However, this demand for
irrigation and maintenance is expected to be less than the current demand
because there will be fewer fountains to maintain. The number of trees to
irrigate under [Option] 1 is the same number as the existing trees. With a
reduce[d] demand for water, the implementation of [Option] 1 will result in
no impacts on water supplies from existing entitlements and resources.
[¶] . . . [¶]
“[Option] 2 [¶] No impact. The determination of no impact as discussed
in [Option] 1 above would be the same for [Option] 2.
“Cumulative Impacts [¶] No impact. . . . [T]he implementation of
cumulative development will result in increases in the demand for water in
Downtown Fresno. Part of this cumulative increase is the projected
increase from the reoccupation of existing office and retail vacant space in
the vicinity of [the] Mall as well as throughout Downtown Fresno. . . .
[E]xisting water entitlements and projected water supplies are estimated to
meet the City’s demand from the development of cumulative projects as
well as from the reoccupation of existing vacant space beyond the next 20
years. Therefore, cumulative projects will result in no impacts on water
supplies from existing entitlements and resources. Since the
implementation of [Option] 1 or 2 would not increase the demand for
water, [Option] 1 or 2 would result in no cumulative impacts on water
supplies from existing entitlements and resources.
43.
“Wastewater Treatment Capacity [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] No impact. . . . [Option] 1 would not generate
wastewater, and therefore, [Option] 1 would result in no impact on existing
wastewater treatment capacity.
“[Option] 2 [¶] No impact. The determination of no impact as discussed
in [Option] 1 above would be the same for [Option] 2.
“Cumulative Impacts. [¶] No impact. . . . [Option] 1 or 2 would result in
no cumulative impacts on wastewater facilities.
“Landfill Capacity [¶] . . . [¶]
“Project Impacts
“[Option] 1
“Construction Phase [¶] Less than significant impact. During the short-
term construction phase, demolition activities will result in material that
will need to be hauled offsite. The material could be transported to a
recycling center or the existing American landfill located west of the City
. . . . The amount of demolition material is not expected to result in a
substantial amount of material that would substantially affect the existing
landfill capacity. Therefore, impacts to the existing landfill would be less
than significant.
“Operations Phase [¶] Less than significant impact. During the long-
term operations phase, minor amounts of refuse may be generated during
maintenance activities. This minor amount of solid waste would result in a
less than significant impact on existing landfills.
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impact on landfills discussed under [Option] 1 would be the
same for [Option] 2.
“Cumulative Impacts [¶] Less than significant impact. The
contribution of potential solid waste during construction and operational
activities associated with [Option] 1 or 2 would not be substantial and
would be considered less than cumulatively considerable. Cumulative
impacts would be less than significant.
44.
“Compliance with Solid Waste Regulations and Statutes [¶] . . . [¶]
“Project Impacts
“[Option] 1 [¶] Less than significant impact. Development under this
[option] is not anticipated to conflict with federal, state, and local statutes
and regulations related to solid waste because development is anticipated to
comply with applicable . . . 2025 General Plan goals and policies and
comply with the . . . Municipal Code requirements and diversion
requirements regarding solid waste disposal. Therefore[,] a less than
significant impact is anticipated.
“[Option] 2 [¶] Less than significant impact. The determination of less
than significant impact on solid waste regulations and statutes described in
[Option] 1 would be the same for [Option] 2.
“Cumulative Impacts [¶] Less than cumulative impact. The proposed
[P]roject would not contribute to conflicts with solid waste regulations and
statutes and would result in less than cumulatively considerable impacts.
Therefore, [P]roject impacts would be less than significant.”
City released the draft EIR on November 26, 2013. At the outset, the report
provided the following background:
“1.2 – Project History
“The [P]roject was originally identified to be assessed in a[n] . . . NOP . . .
issued in April 2012. That NOP provided that the City intended to prepare
an EIR to assess the impacts from the adoption of the proposed . . . D[NC]P
. . . , the proposed . . . FCSP . . . , and a Downtown Development Code
(collectively ‘Downtown Plans’).
“The [P]roject was to be assessed in connection with the review of the
FCSP because the FCSP identified revitalizing the . . . Mall as a top
priority. The . . . FCSP selected three options . . . to be further analyzed in
the EIR that would be prepared to adopt the FCSP[.] [¶] . . . [¶] The
purpose for the additional study in the EIR was to allow the [City] Council
to elect one of the three options when the FCSP was adopted.
“The City has determined to prepare an EIR for the [P]roject now,
independent of the FCSP or Downtown Plans, for three reasons:
(1) because . . . the City has been awarded Federal grants for the [P]roject
which require environmental review to be completed by February 2014;
(2) because it is unlikely[,] or at least . . . uncertain, that the Downtown
45.
Plans and the EIR to review those plans will be brought to [the City]
Council before the Federal grant timelines run; and (3) the . . . Project has
independent utility.
“In August 2012, the . . . FHWA . . . announced the award of $1 million
from the . . . TCSP . . . Program to the City for preconstruction expenses for
the [P]roject, and in September 2013, [DOT] announced that the City . . .
had been awarded nearly $16 million in . . . TIGER . . . funding for . . .
construction expenses.
“As a result of receiving the grant awards, a National Environmental Policy
Act (NEPA)[28] environmental assessment must be prepared for the
[P]roject, and otherwise treat the [P]roject as a federal undertaking by the
FHWA . . . . Caltrans, the designated agency for FHWA NEPA review, is
currently preparing the necessary NEPA documents for the [P]roject.
“The TIGER grant requires that obligation of the construction funds must
occur no later than September 30, 2014. This means that Caltrans and
FHWA must have approved the [P]roject with the fully complete
engineering drawings, ready for bid, finalized after the adoption or
certification of both federal and state environmental reviews. To meet this
deadline, the EIR for the [P]roject will need to be certified by February
2014. [¶] . . . [¶]
“When the [NOP] was issued in April 2012, it was expected that the DNCP
and the FCSP would be brought to [the City] Council in 2013. However,
delays have occurred for several reasons, not limited to the City needing to
find a new environmental consultant as a result of a business disruption of
the City’s hired consultant that was outside the City’s control.
Additionally, when the DNCP and FCSP were initiated and first being
drafted, the City had not started on the . . . General Plan and Development
Code Update. The City has drafted and released to the public for comment
Preliminary Workshop Discussion Drafts of various chapters of the
proposed General Plan Update. Since the DNCP and FCSP have yet to be
approved, the City is currently planning to bring the D[NC]P and the FCSP
to [the City] Council after the General Plan and Development Code Update.
Based upon all of this, particularly given the many complicated issues that
the FCSP, DNCP, and the General Plan and Development [C]ode Update
must address in preparation for adoption, the City determined that it would
be unrealistic to expect the combined DNCP/FCSP and . . . Mall
environmental review to be completed in time to meet TIGER deadlines. It
28 Title 42 United States Code section 4321 et seq.
46.
is in light of the TIGER grant, therefore, that the City is preparing this new
CEQA document, which addresses the [P]roject on its own, and is also
focused on the Project as being conditioned on the allowed purposes of the
TIGER grant funds. [¶] . . . [¶]
“2.2 – Project Objectives
“The following are the objectives of the proposed [P]roject[:]
“[(1)] Reconstruct [the] Mall . . .
“[(2)] Increase mobility and access in the . . . Mall area
“[(3)] Provide convenient multi-modal access options on the Mall
and its cross streets
“[(4)] Improve visibility of businesses, offices[,] and other
amenities in the . . . Mall area by improving traffic circulation
“[(5)] Maximize sustainable development and economic
productivity in conjunction with other downtown redevelopment
projects while respecting, incorporating, and minimizing harm to the
historic . . . Mall landscape and its contributing features[29]
“[(6)] Provide greater long-term public use of [the] Mall
“[(7)] Secure funds for the reconstruction of [the] Mall[30]
“2.3 – Project Description
“The City . . . proposes to reconstruct [the] Mall as a complete street by
reintroducing vehicle traffic lanes to the existing pedestrian mall. The Mall
29 This objective is reworded in Section 6 (Alternatives to the Proposed Project) of
the draft EIR:
“[(5)] Maximize sustainable development and economic productivity in
conjunction with other downtown redevelopment projects while complying
with the requirement to receive federal transportation grant funds to
minimize harm to the historic site resulting from the Project.”
30 This objective is reworded in Section 6 (Alternatives to the Proposed Project) of
the draft EIR:
“[(7)] Reconstruct [the] Mall using funds and other sources, including
grants, other than the . . . General Fund[.]”
47.
consists of six linear blocks that were open to traffic prior to 1964 but now
do not allow public vehicle access. The Mall is bounded by Tuolumne
Street to the north and Inyo Street to the south, and includes portions of
three cross streets. The total length of the new roadways would be
approximately 0.67 mile; a total of 0.74 mile of existing . . . Mall right-of-
way would be affected.
“The . . . Mall . . . refers specifically to the pedestrian areas between
adjoining buildings located on the former City streets of Fulton, Mariposa,
Merced, and Kern, which function as an integrated pedestrian mall. Fresno
Street and Tulare Street, which do allow vehicle traffic, run through the
Mall and divide it into three roughly equal sections. Mall landscaping
elements include fountains, planters, benches, sculptures, electrical
systems, irrigation systems, and two ‘tot lots.’ The Mall does not include
the adjoining buildings or their facades.
“The City . . . is proposing two build options for the . . . Project. These two
build options propose to reconstruct the Mall using ‘complete streets’
design concepts. Complete streets are those designed to function as shared
public space, or as ‘living streets’—for pedestrians, cyclists, outdoor
businesses, and slow-moving, cautiously driven vehicles. Complete streets
may include narrow roadways, corner bulb-outs, winding streets, and other
traffic calming measures to lower driving speeds; street trees and other
landscape elements; wide pedestrian sidewalks and crosswalks; and bicycle
accommodations such as dedicated bicycle lanes or wide shoulders. The
purpose of incorporating these design concepts into the proposed [P]roject
is to retain portions of the historic fabric and character of the Mall,
maintaining the key elements, feeling[,] and unique experience of a
pedestrian mall in [D]owntown Fresno. [¶] . . . [¶]
“2.3.1 – Project Option 1
“Option 1 consists of reopening the . . . Mall with two-way streets, with one
lane of vehicular traffic in each direction alongside bicycle, pedestrian, and
potentially other travel modes, along the length of the . . . Mall and three
cross streets: Merced between Congo Alley and Federal Alley, Mariposa
between Broadway Plaza and Federal Alley, and Kern between Fulton and
Federal Alley. Approximately 162 on-street vehicle parking spaces would
be reintroduced along the length of the . . . Mall (plus 28 new spaces along
cross streets), mid-block pedestrian crossings would be provided, and
construction of streetscape improvements would optimize the streets for the
new blend of travel modes. One 11-foot-wide vehicle travel lane would run
in each direction, with a parallel parking lane of [eight] feet included on
both sides of the streets. Sidewalks would include a typical 14-foot
48.
sidewalk on one side of the street and a 28-foot-wide promenade on the
other. This promenade is intended to approximate the mall-like pedestrian
experience of the original . . . Mall. Like the existing [M]all, the Option 1
promenade would feature artworks, water features, seating, and trees and
would allow for walking and pedestrian-only seating, landscaping, and
lighting. Pedestrians would be separated from vehicles. There are existing
street rights-of-way adjacent to the new streets within the Mall that would
include minor public infrastructure improvements such as new curb
locations, traffic signal improvements, and lane striping. These
improvements would provide transitional streetscape to accommodate the
[P]roject. Under Option 1, the two tot lots present, one located near the
corner of Merced and Fulton, and the other located near the corner of Kern
and Fulton, would be consolidated into one larger tot lot (approximately
1,772 square foot area) . . . near the intersection of Mariposa and Congo
Alley.
“2.3.2 – Project Option 2
“Option 2 consists of reconnecting the street grid similar to Option 1, but
would include rebuilding distinctive elements of the . . . Mall in five to six
specific locations, known as ‘vignettes,’ in their exact current size and
configuration. The vignettes are intended to preserve existing shade trees
and features of the historic Eckbo design, and would include many of the
existing elements (sculptures, fountains, pavement pattern, trees, and so
on). To accomplish this, the street would have gentle curves that would
allow for greater preservation of historic features including fountains, art[,]
and existing shade trees. One 11-foot-wide vehicle travel lane would run in
each direction and would curve through the vignettes. Outside the vignette
areas, the street would straighten, and the landscape would include, where
possible, an [eight]-foot-wide parallel parking lane, as well as a pedestrian-
only walking, seating, vegetation, and public art area that varies between 14
and 44 feet wide each side of the street. Within the vignettes, there would
be no parking lane, and the existing . . . Mall landscape elements would be
kept intact as much as possible. A total of 52 on-street vehicle parking
spaces would be reintroduced along the length of the . . . Mall, plus 30 new
spaces along cross streets. The remaining space on each side of the street
would be dedicated to pedestrian travel, seating, vegetation, and artwork.
There are existing street rights-of-way adjacent to the new streets within the
Mall that would include minor public infrastructure improvements such as
new curb locations, traffic signal improvements, and lane strip[]ing. These
improvements would provide transitional streetscape to accommodate the
[P]roject. Under Option 2, the two tot lots present, one located near the
corner of Merced and Fulton, and the other located near the corner of Kern
49.
and Fulton, would be consolidated into one larger tot lot (approximately
1,772 square foot area) . . . near the intersection of Mariposa and Congo
Alley. [¶] . . . [¶]
“3.1 – Project Environmental Setting
“The [P]roject site is a pedestrian mall that contains various features. These
features include pavement with a pattern that resembles the contours of the
natural landscape, trees, shrubs, flowers, planters, seating areas, benches,
sculptures, water features, and two tot lots. The overall appearance of the
[P]roject site is that it is minimally maintained[:] the pavement is dirty,
with numerous areas of food stains, discarded chewing gum, cigarette butts,
and . . . crack[s]. . . . The trees include roots that have cracked the
pavement in numerous locations. Many of the planter walls and curbs are
cracked. Some sculptures have been vandalized and others are not
prominently displayed or identified. Some of the fountains have also been
vandalized and have been inoperable for many years. The plaster on the
fountains is cracked and the pumps and/or lighting are inoperable and have
become repositories for debris, discarded bits of food, and cigarette butts.
“Immediately adjacent to the [P]roject site are the buildings that line [the]
Mall. These buildings consist of one, two, three, and multiple-story
structures. . . . Because of the ground floor vacancies within [the] Mall,
which is approximately 26 percent, many of the businesses have industrial-
looking metal gates that extend across the storefront indicating that the
building space is vacant and abandoned.
“[The] Mall as well as the area immediately adjacent to [the] Mall includes
various land uses. The area adjacent to [the] Mall is bordered by Van Ness
Avenue on the east, Inyo Street on the south, Broadway/H Street on the
west, and Tuolumne Street on the north. . . . Within this area, there are
office, retail/restaurant, recreation-clubhouse, other commercial such as a
hotel and theater, and residential. The structures located along [the] Mall
include multiple stories with storefronts on the ground floor and additional
uses within the upper stories. . . . [¶] . . . [¶]
“The [P]roject vicinity also includes surface parking, structured parking,
and a vacant lot. This area includes approximately 2,800 parking spaces.
Approximately 75 percent of those spaces are located within structures
while 25 percent of the parking spaces are within surface parking lots.
There are 14 on-street parking spaces located on Merced . . . and Kern . . .
west of Van Ness Avenue and east of Fulton . . . . There is one vacant lot at
the southwest corner of Tulare Street and Van Ness Avenue. The vacant lot
encompasses approximately 20,000 square feet (sq[.] ft[.]).
50.
“In addition to land uses within the existing structures along [the] Mall,
there are two recreational areas for children within [the] Mall. These areas
are tot lots with playground equipment and sand areas. One of the tot lots
is located within [the] Mall immediately north of Kern . . . and
encompasses 966 sq[.] ft[.] of active play equipment area. The second tot
lot is also within [the] Mall immediately south of Merced . . . and
encompasses 806 sq[.] ft[.] of active play equipment area. . . . Today most,
though not all, of this equipment remains functional for the children to use.
“3.2 – Cumulative Environmental Setting
“In the vicinity of [the] Mall, there are various development applications
that have been submitted to the City. In addition to these development
projects, future developments in accordance with two currently proposed
plans are also identified as cumulative future projects. Together, these
current and future projects represent the related projects that are considered
within the cumulative impact evaluations prepared in . . . this [d]raft
EIR. . . .[31] [¶] . . . [¶]
“In addition to the development projects in the vicinity of [the] Mall, there
are various development projects proposed beyond the vicinity of [the]
Mall and within Downtown Fresno. . . .[32] [¶] . . . [¶]
“In addition to the development projects that are identified above, the
implementation of the . . . DNCP . . . and the . . . FCSP . . . , if adopted by
31 These projects include: (1) construction of a pharmacy at the corner of Van Ness
Avenue and Tuolumne Street; (2) tenant improvements for new federal offices at 1155
Fulton; (3) tenant improvements for a new restaurant at 1101 Fulton; (4) tenant
improvements for residential units at 959 Fulton; (5) tenant improvements for a restaurant
lounge at the Pacific Southwest Building; (6) tenant improvements for stores at the Hotel
Californian; (7) storm drain replacement in the middle of the Mall between Inyo Street
and Tuolumne Street; (8) water line replacement on Kern between Federal Alley and
Home Run Alley; (9) water line replacement on Mariposa between Federal Alley and
Congo Alley; (10) sewer line replacement on Kern between Van Ness Avenue and Home
Run Alley; (11) sewer line replacement on Merced between Van Ness Avenue and
Congo Alley; and (12) a redesign of Mariposa Plaza.
32 These projects include: (1) a new pedestrian crossing along Van Ness Avenue at
Mariposa; (2) a bus stop along Van Ness Avenue at Mariposa; (3) a high-speed rail
station along existing Union Pacific railroad tracks between Fresno Street and Tulare
Street; and (4) various residential projects in the FCSP area but outside the Mall area,
including approximately 350 new housing units in the Cultural Arts District and the area
known as Chinatown.
51.
the City, is expected to facilitate infill development through permitting
procedures designed to expedite project approvals and clear design
standards and guidelines for projects within the boundaries of the
plans. . . .”
The draft EIR proceeded to evaluate the Project’s significant effects on short-term visual
character and historical resources:
“4.1 – Aesthetics [¶] . . . [¶]
“4.1.5 – Impact Analysis and Mitigation Measures
“Visual Character [¶] . . . [¶]
“Project Impact Analysis
“Project Option 1[:] [¶] Implementation of Project Option 1 would
temporarily remove the sculptures from [the] Mall for rehabilitation prior to
grading activities. Three of the fountains that are located along Kern . . . ,
west of Fulton, would remain. The remaining 18 fountains would be
removed. There are 14 of the remaining 18 fountains that have not been
operable for years because plaster is cracked, pumps and/or lighting are
inoperable, and the fountains have become repositories for debris, discarded
bits of food, and cigarette butts. Approximately 151 of the 154 trees as
well as the planters, shrubs, and seating area would be removed during
grading activities, and three trees would remain. The most prominent
visual alteration during grading activities would be the removal of the
existing mature trees. Currently, the trees within the Mall provide a visual
relief as well as shade. The removal of the existing trees will result in a
significant impact on the visual character of the . . . Mall area.
“Project Option 2[:] [¶] Implementation of Project Option 2 would
temporarily remove the sculptures from [the] Mall for rehabilitation prior to
grading activities. Twelve of the existing fountains—nine in vignettes and
three on Kern . . . , west of Fulton—would remain. The remaining [nine]
fountains would be removed. Although there are 14 fountains that have not
been operable for years because plaster is cracked, pumps and/or lighting
are inoperable, and the fountains have become repositories for debris,
discarded bits of food, and cigarette butts, . . . Option [2] would
refurbish/rehabilitate five of the currently inoperable fountains.
Approximately 124 of the 154 trees as well as the planters, shrubs, and
seating area would be removed during grading activities, and 30 trees
would remain. The most prominent visual alteration during grading
activities would be the removal of the existing mature trees. Currently, the
52.
trees within the Mall provide a visual relief as well as shade. The removal
of the existing trees will result in a significant impact on the visual
character of the . . . Mall area.
“Cumulative Impact Analysis[:] [¶] The implementation of cumulative
development within the Downtown Fresno area could alter the existing
visual characteristics. This alteration could occur through the
implementation of the proposed DNCP and FCSP as well as current
development projects in the . . . Mall area. Since the implementation of
Project Options 1 and 2 will result in a short-term significant and
unavoidable impact on the existing visual quality of [the] Mall, Project
Options 1 and 2 could contribute to significant cumulative impacts on the
existing visual quality of Downtown Fresno. The contribution is
considered to be considerable and significant. The following mitigation
measures are recommended to reduce the short-term visual quality impacts.
“Mitigation Measures
“Project Option 1
“MM AES[33]-1[:] Trees that are removed shall be replaced with a new
tree at a 1:1 ratio within the . . . Mall right-of-way. Currently, the City is
planning to replant approximately 132 new trees. The replacement trees
shall be consistent with the landscape palette and design approved by the
Parks Director and the Public Works Director.
“MM AES-2[:] Replacement trees to be planted shall be of varying sizes
that range from 15 gallon to 36-inch box. Each replacement tree shall have
root barriers to prevent sidewalk upheaval from roots.
“Project Option 2
“The implementation of [MM] AES-2 is required.
“MM AES-3[:] The City shall replace approximately 70 trees within the
. . . Mall right-of-way. The replacement trees shall be consistent with the
landscape palette and design approved by the Parks Director and the Public
Works Director.
33 “AES” refers to “Aesthetics – Short-term Visual Character.”
53.
“Level of Significance After Mitigation
“Project Option 1[:] [¶] With the implementation of [MM] AES-1 and
[MM] AES-2, Project Option 1 would include the replanting of
approximately 118 to 132 new trees of varying sizes within the rights-of-
way of [the] Mall. The replanting of the trees would eventually provide
substantial visual relief and shade within the . . . Mall area. However,
similar visual relief and shade would not be provided by the replanted trees
until the trees are mature which could be for approximately [five] to 10
years. Therefore, the alteration of the visual character of [the] Mall area
would be substantial during the short-term that is approximately [five] to 10
years. Therefore, implementation of Option 1 would result in a significant
short-term impact on the visual character of the . . . Mall area.
“Project Option 2[:] [¶] With the implementation of [MM] AES-2 and
[MM] AES-3, Option 2 would include the replanting of approximately 70
trees of varying sizes within the rights-of-way of [the] Mall. The replanting
of the trees would eventually provide substantial visual relief and shade
within the . . . Mall area. However, similar visual relief and shade would
not be provided by the replanted trees until the trees are mature which could
be for approximately [five] to 10 years. Therefore, the alteration of the
visual character of [the] Mall area would be substantial during the short-
term that is approximately [five] to 10 years. Therefore, implementation of
Option 1 would result in a significant short-term impact on the visual
character of the . . . Mall area.
“Cumulative[:] [¶] Similar to the discussions above, the implementation of
[MM] AES-1 and [MM] AES-2 for Option 1 and [MM] AES-2 and [MM]
AES-3 for Option 2 would reduce visual character impacts associated with
Option 1 or 2. However, similar visual relief and shade would not be
provided by the replanted trees until the trees are mature which could be for
approximately [five] to 10 years. Therefore, the alteration of the visual
character of [the] Mall area would substantially contribute to potential
short-term cumulative visual character impacts. Project Option 1 or 2
would result in a short-term visual character cumulative impact that is
significant and unavoidable until the replanted trees are mature which could
be for approximately [five] to 10 years.
“4.2 – Historical Resources [¶] . . . [¶]
“4.2.5 – Impact Analysis and Mitigation Measures
“Historical Resources [¶] . . . [¶]
54.
“Project Impact Analysis[:] [¶] The . . . Project would completely remove
the existing Mall and introduce a two-lane, two-way street with oversized
sidewalks, stately trees, and on-street parking throughout the . . . Mall and
its cross streets. [¶] It is proposed that the . . . Mall be reopened to
vehicular traffic and the pedestrian-only qualities of the Mall be removed.
The . . . Mall was listed on the CRHR[34] as a landmark example of 1960’s
era pedestrian-oriented urban landscaping. Regular vehicle use on what
was formerly Fulton Street and the cross[]streets was almost completely
restricted once built, and this restriction is a key element to the uniqueness
of the Mall as a historical resource.
“Project Option 1[:] [¶] Direct Impacts[:] [¶] The development of
Project Option 1 would remove the existing Mall’s character-defining
features and materials including the pavement that includes stained concrete
inlaid with sweeping curvilinear ribbons of concrete aggregate. Project
Option 1 would also include the removal of the majority of the shade trees
and shrubs, majority of the fountains and water features, shade pavilions,
and seating areas. The sculptures will be removed temporarily during
construction, renovated/restored, and then placed back within the wide
sidewalks. The [P]roject will include replacement trees and shrubs as well
as replicate the stained pavement with curvilinear ribbons within the
proposed sidewalk areas. Even though the [P]roject includes replacement
of some of the Mall’s character-defining features and materials, the removal
of many of them as well as the introduction of automobile traffic within
[the] Mall, including the cross malls, would alter the . . . Mall such that it
would no longer retain the integrity of location, design, setting, materials,
workmanship, feeling, or association. . . .
“Location is defined as ‘the place where the historic property was
constructed or the place where the historic event occurred.’ Since most of
the character-defining hardscape and landscape features would be removed
from their historic location, the . . . Mall would no longer retain integrity of
location.
“Design is defined as ‘the combination of elements that create the form,
plan, space, structure, and style of a property.’ Removing most of the . . .
Mall’s landscape and hardscape features would significantly alter the form,
plan, space, structure and style of the Mall, and it would no longer retain
integrity of design.
34 “CRHR” refers to the California Register of Historical Resources.
55.
“Setting is defined as the physical environment of a historic property.
Most of the Mall’s character-defining hardscape and landscape features
would be removed, and automobile traffic would be introduced to areas that
Mr. E[c]kbo designed as pedestrian-only spaces. These actions would
significantly alter the setting, and the . . . Mall would no longer retain its
integrity of setting.
“Materials are defined as ‘the physical elements that were combined or
deposited during a particular period of time and in a particular pattern or
configuration to form a historic property.’ Since most of the character-
defining hardscape and landscape material would be removed under
Option 1, the . . . Mall would no longer retain integrity of materials.
“Workmanship is defined as ‘the physical evidence of the crafts of a
particular culture or people during any given period in history or
prehistory.’ The character-defining hardscape and landscape features of the
. . . Mall embody the particular craftsmanship of both landscape designer
Garrett Eckbo and the individual artists commissioned to provide sculptures
and mosaics. Since most of the original hardscape and landscape features
would be removed, the . . . Mall would no longer retain integrity of
workmanship.
“Feeling is defined as ‘a property’s expression of the aesthetic or historic
sense of a particular period of time.’ The . . . Mall is historically significant
in part for its association with post-World War II landscape design and the
mid-20th century trend for pedestrian malls as a redevelopment scheme.
These associations are expressed not only through the Mall’s individual
design elements but in how these elements are arrayed and integrated along
several street blocks closed to automobile traffic. Option 1 would remove
most of the original hardscape and landscape features, and those features
that remain would be interrupted by a traditional street. The original
expression of a linear, pedestrian landscape traversing several blocks would
be lost, and the . . . Mall would no longer retain integrity of feeling.
“Association is defined as ‘the direct link between an important historic
event or person and a historic property.’ The . . . Mall is historically linked
to its designer, master landscape architect Garrett Eckbo, because the
original implementation of his design remains largely intact today. Option
1 would remove most of the original hardscape and landscape features and
those features that would be returned after construction would be located
within the existing rights-of-way; however, the features that would be
returned would no longer work together as an integrated whole. Garrett
Eckbo’s original vision of a continuous linear landscape would no longer
56.
be discernible, and the . . . Mall would no longer retain integrity of
association.
“In summary, the proposed removal of most of original hardscape and
landscape features and the introduction of automobile traffic to a previously
pedestrian-only thoroughfare would alter the . . . Mall such that it would no
longer retain integrity of location, design, setting, materials, workmanship,
feeling, or association. Subsequently, the . . . Mall would no longer be
eligible for the National Register [of Historic Places] or the [CRHR].
Therefore, the implementation of Option 1 would result in a significant and
unavoidable impact to the . . . Mall.
“Indirect impacts[:] [¶] The removal of [the] Mall would also alter the
landscape adjacent to existing structures that are along [the] Mall. The re-
opening of [the] Mall to automobile traffic would have a positive indirect
effect on the pre-1964 structures that are located directly adjacent to the . . .
Mall. This positive indirect effect would occur because the . . . Mall was
designed and constructed downtown after all of the locally important
buildings were constructed. The removal of the Mall would return the
downtown core to a pre-Mall historical state by returning Fulton Street and
its cross streets. Therefore, the implementation of Option 1 would result in
an indirect beneficial impact on the pre-1964 structures located adjacent to
[the] Mall.
“Project Option 2[:] [¶] Direct Impacts[:] [¶] This option removes the
entire pedestrian . . . Mall and introduces a two-lane, two-way street with
12[-] to 20-foot wide sidewalks through the . . . Mall and its cross streets.
This option includes keeping selected original features in their original Mall
contexts through the construction of vignettes, in a manner that provides
improved retail visibility and some on-street parking. Existing artwork will
be restored in place and other artwork will be relocated within the
boundaries of the existing rights-of-way of [the] Mall and the cross malls.
This option also includes removing approximately 224 trees, retaining
approximately 30 trees, and planting approximately 224 trees. Many of the
fountains, water features, and seating areas and all of the shade pavilions
would be removed throughout the majority of the Mall.
“The development of Option 2 would remove a majority of the existing
Mall’s character-defining features and materials including the removal of
the stained concrete pavement inlaid with sweeping curvilinear ribbons of
concrete aggregate. This option includes retaining original Mall landscape
within areas known as vignettes. Of the six blocks along Fulton Street that
comprise [the] Mall, approximately 2.5 non-contiguous blocks would retain
the original Mall context, dispersed as six vignettes throughout the length
57.
of Fulton Street between Inyo Street and Tuolumne Street. This option also
includes the installation of stained concrete pavement with ribbons in the
sidewalk areas.
“Even though the [P]roject includes replacement of some of the Mall’s
character-defining features and materials, the removal of the majority of
them as well as the introduction of automobile traffic within [the] Mall,
including the cross malls, would alter the . . . Mall such that it would no
longer retain the integrity of location, design, setting, materials,
workmanship, feeling, or association. . . .
“. . . Since the majority of the character-defining hardscape and landscape
features would be removed from their historic location, the . . . Mall would
no longer retain integrity of location.
“. . . Removing the majority of the . . . Mall’s landscape and hardscape
features would significantly alter the form, plan, space, structure and style
of the Mall, and it would no longer retain integrity of design.
“. . . The majority of the Mall’s character-defining hardscape and
landscape features would be removed, and automobile traffic would be
introduced to areas originally designed as pedestrian-only spaces. These
actions would significantly alter the setting of those portions of the Mall
that would remain as ‘vignettes.’ Subsequently, the . . . Mall would no
longer retain its integrity of setting.
“. . . Since the majority of the character-defining hardscape and landscape
material would be removed under Option [2], the . . . Mall would no longer
retain integrity of materials.
“. . . The character-defining hardscape and landscape features of the . . .
Mall embody the particular craftsmanship of both landscape designer
Garrett Eckbo and the individual artists commissioned to provide sculptures
and mosaics. Since the majority of the original hardscape and landscape
features would be removed, the . . . Mall would no longer retain integrity of
workmanship.
“. . . The . . . Mall is historically significant in part for its association with
post-World War II landscape design and the mid-20th century trend for
pedestrian malls as a redevelopment scheme. These associations are
expressed not only through the Mall’s individual design elements but in
how these elements are arrayed and integrated along several street blocks
closed to automobile traffic. Option 2 would remove the majority of the
original hardscape and landscape features and those features that remain
58.
would be interrupted by a traditional street. The original expression of a
linear, pedestrian landscape traversing several blocks would be lost, and the
. . . Mall would no longer retain integrity of feeling.
“. . . The . . . Mall is historically linked to its designer, master landscape
architect Garrett Eckbo, because the original implementation of his design
remains largely intact today. Option 2 would remove the majority of the
original hardscape and landscape features, and those features that remain
would be isolated as individual ‘vignettes’ that no longer work together as
an integrated whole. Garrett Eckbo’s original vision of a continuous linear
landscape would no longer be discernible, and the . . . Mall would no longer
retain integrity of association.
“In summary, the proposed removal of the majority of original hardscape
and landscape features and the introduction of automobile traffic to a
previously pedestrian-only thoroughfare would alter the . . . Mall such that
it would no longer retain integrity of location, design, setting, materials,
workmanship, feeling, or association. Subsequently, the . . . Mall would no
longer be eligible for the National Register [of Historic Places] or the
[CRHR]. Therefore, the implementation of Option 2 would result in a
significant and unavoidable impact to the . . . Mall.
“Indirect impacts[:] [¶] The removal of [the] Mall would also alter the
landscape adjacent to existing structures that are along [the] Mall. The re-
opening of [the] Mall to automobile traffic would have a positive indirect
effect on the pre-1964 structures that are located directly adjacent to the . . .
Mall. This positive indirect effect would occur because the . . . Mall was
designed and constructed downtown after all of the locally important
buildings were constructed. The removal of the Mall would return the
downtown core to a pre-Mall historical state by returning Fulton Street and
its cross streets. Therefore, the implementation of Option 2 would result in
an indirect beneficial impact on the pre-1964 structures located adjacent to
[the] Mall.
“Cumulative Impacts Analysis[:] [¶] Cumulative development includes
various development applications that have been submitted to the City in
the vicinity of [the] Mall and potential development in accordance with the
DNCP and FCSP, if approved. A few of the development applications
include storm drain, water, and sewer replacement facilities within [the]
Mall, including Kern, Mariposa and Merced. These potential projects
could result in impacts to some of the features of [the] Mall including the
stained concrete pavement inlaid with sweeping curvilinear ribbons of
concrete aggregate. In addition, one of the potential projects includes the
re-introduction of store fronts on the Hotel Californian along Kern . . . .
59.
The Hotel Californian is listed on the National Register of Historic Places,
and the re-introduction of storefronts could impact the historic resource;
however, the modifications to the Hotel Californian would be required to
follow the Secretary of the Interior’s Standards and thus would not lead to
an adverse impact to this resource. The future implementation of the
DNCP and FCSP may result in partial or whole demolition of historic
resources, but these potential impacts are speculative because no specific
development applications have been submitted since these two downtown
plans have not been approved, and both of these plans could be
implemented without affecting a[] historic resource. Overall, the
implementation of cumulative development could result in impacts to
historic resources. Together with the implementation of Option 1 or 2,
cumulative development would result in a significant impact. Since Option
1 or 2 would significantly impact the . . . Mall, the impact on historical
resources from Option 1 or 2 would be cumulatively considerable, and
therefore would be a significant cumulative impact.
“Mitigation Measures [¶] . . . [¶]
“Project Option 1
“MM HR[35]-1[:] Prior to demolition, the City shall have archival
documentation (Historic American Building Survey [HABS] level 1
documentation) prepared for the . . . Mall landscape. HABS Level 1
documentation shall consist of the following: [¶] . . . Architectural and
historical narrative[;] [¶] . . . Adequate archival drawings as available[;]
[¶] . . . Historical photographs as available[; and] [¶] . . . Archival
photographs documenting all character-defining features, as well as context
views.
“MM HR-2[:] An interpretive program shall be developed using plaques,
photographs, drawings and text, etc. informing the public about Garrett
Eckbo, and the . . . Mall as an important example of mid-20th century
landscape design.
“Project Option 2[:] [¶] Implementation of [MM] HR-1 and [MM] HR-2
are required.
“Cumulative[:] [¶] Implementation of [MM] HR-1 and [MM] HR-2 are
required.
35 “HR” refers to “Historical Resources.”
60.
“Level of Significance After Mitigation
“Project Specific[:] [¶] Since the objective of the . . . [P]roject is to
introduce automobile traffic and parking to a previously pedestrian-only
thoroughfare and [the Project] require[s] t[he] remov[al] [of] the existing
Mall landscape and hardscape features within the portion of the right-of-
way proposed for the two-lane, two-way street, mitigation measures for
Project Option 1 or 2 are not available to reduce the impact to historical
resources to less than significant. Implementation of [MM] HR-1 and
[MM] HR-2 will document and memorialize the . . . Mall landscape;
however, impacts to the . . . Mall will remain significant.
“Cumulative[:] [¶] Project Options 1 and 2 would significantly contribute
to cumulative impacts to historical resources. The implementation of
[MM] HR-1 and [MM] HR-2 will document and memorialize the . . . Mall
landscape; however, impacts to the . . . Mall will remain significant.
Therefore, Project Options 1 and 2 would result in significant cumulative
impacts.”
The initial study’s discussion on the Project’s insignificant effects on air quality,
greenhouse gas emissions, public services, recreation, traffic, and utilities (see ante,
pp. 13-45) was appended to and incorporated into the substantive content of the draft
EIR.
The draft EIR also addressed growth-inducing impacts:
“The proposed [P]roject under [Options] 1 or 2 would eliminate the . . .
Mall and introduce two-way streets that would provide vehicular
interconnectivity to adjacent roadways. No new businesses or housing
[are] proposed. Since the [P]roject vicinity is already developed, the
introduction of the new streets would not directly induce new development
and would not affect the regional population and housing characteristics of
the City.
“Although the [P]roject would not include any additional development
within the [P]roject area, the provision of streets will increase access to the
area. The increase in access is anticipated to influence growth within the
[P]roject area. This growth is anticipated to occur through the reoccupation
of the ground floors of existing vacant buildings as vehicle access and
parking become available.
“. . . [T]he reopening of Fulton Street and adding on-street parking [are]
anticipated to reduce the ground floor retail vacancies from 26 percent to
61.
nine percent under [Option] 1 and to 15 percent under [Option] 2. In
addition, the reopening of Fulton Street and adding on-street parking [are]
anticipated [to] reduce office vacancies within [the] Mall from 46 percent to
17 percent under both [Options] 1 and 2. Interest in developing Downtown
Fresno overall has been on the rise for several years. Since the density
along [the] Mall is so much greater than other areas, activity in the
immediate vicinity of [the] Mall fuels itself, and the increases in economic
productivity expected to occur as a result of implementing [Options] 1 or 2
are substantial.
“Although the [P]roject would result in the indirect inducement of
growth[,] including population growth[,] within the . . . Mall area, this
inducement would result in the reoccupation of previously vacated
buildings adjacent to [the] Mall. This reoccupation of existing vacant
buildings would be consistent with approved City land use plans and would
not affect the regional population characteristics of the City. No significant
indirect growth inducing impact would occur with the implementation of
[Options] 1 or 2.”
The draft EIR examined several alternatives to the proposed Project, including
Option 3 and Alternative 6.3.4:
“6.2.1 – Restoration and Completion
“This Alternative, known as ‘Option 3’ in the draft [FCSP] and preliminary
design work, would keep . . . Fulton . . . , Merced . . . , Mariposa . . . , and
Kern . . . in their original pedestrian-only configurations. The entire [M]all
as envisioned and realized by Garrett Eckbo, including all of its features
and details (fountains, pavement, plantings, lighting, and so on), would be
renovated and the existing artwork restored in place. Various design
improvements would be introduced, including more lighting, new
restrooms, and better way-finding signage.
“The implementation of [Option 3] would include the reconstruction and
rehabilitation of the Mall and its contributing features consistent with the
Secretary of the Interior Standards for the Rehabilitation of Historic
Properties. [Option 3] would avoid the significant and unavoidable adverse
impact on the . . . Mall, a[] historic resource which is eligible for listing in
the National Register of Historic Places.
“[Option 3] would not increase mobility within the Mall area and would not
increase access to the Mall storefronts because no additional access to the
Mall would be provided. In addition, [Option 3] would not add any on-
street vehicle parking spaces along the length of the . . . Mall and cross
62.
streets. [Option 3] would not provide for multi-modal access options on the
Mall and its cross streets because it would remain pedestrian oriented.
Since no new streets would be constructed adjacent to the Mall, the
visibility of the businesses, offices, and other amenities in the . . . Mall
would not be improved. . . . [Option 3] would reduce ground floor
vacancies from 26 percent to 20 percent and would increase annual gross
retail sales by $6.1 million. In comparison to Project Options 1 and 2,
[Option 3] would result in greater ground floor vacancies (approximately 5
to 11 percent more vacancies) and less annual gross retail sales
(approximately $17.2 million to $40.9 million less annual gross retail
sales). [Option 3] would not maximize sustainable development and
economic productivity in conjunction with other downtown redevelopment
projects while complying with the requirement to receive federal
transportation grant funds to minimize harm to the historic site resulting
from the Project. [Option 3] would provide greater public use of the Mall;
however, given the historic use of the Mall, the long-term public use of the
Mall may not be greater than the current use. The current federal grants
secured by the City for the . . . Project would not qualify for use by [Option
3]. Transportation projects throughout the City each year have been funded
through federal, State, and local funds and no direct funds from the . . .
General Fund because the City does not allocate General Fund monies for
transportation projects within the City. At this time, City staff is unaware
of funding sources that are available to fund [Option 3], and there is no
reasonable expectation to obtain funding for [Option 3]. [¶] . . . [¶]
“Based on the above discussion, although [Option 3] would avoid a
significant and unavoidable impact on a[] historic resource, it would fail to
meet most of the basic project objectives. In addition, [Option 3] is
considered infeasible because construction funds, or reasonable expectation
to obtain funds, are not available . . . , substantial annual economic
subsidies would be needed, and there is no reasonable expectation that
these annual subsidies would be available. [¶] . . . [¶]
“6.3.4 – Keep South and Center Three Blocks Closed
“This Alternative would maintain three blocks of the . . . Mall, keeping the
. . . Mall between Fresno and Kern . . . as a pedestrian-only facility. It
would transform the two northern blocks of Mariposa, Merced[,] and
Fulton . . . and the one southern block of Kern and Fulton . . . into standard
streets. It would restore the remaining Eckbo features and restore existing
artwork, moving the art elsewhere within the Fulton Corridor, where
necessary. This Alternative would reconstruct the Mariposa Plaza,
63.
facilitate outdoor dining, and introduce more lighting, new restrooms, better
signage[,] and new streetscape and artwork in selected locations.
“Impact Analysis
“Aesthetics [¶] Under this Alternative, the features within three blocks of
the . . . Mall that are along the Fulton alignment (fountains, pavement,
plantings, lighting, and so on) would be renovated, and the existing artwork
restored in place. This Alternative would reconstruct more than half of the
existing . . . Mall with standard streets. The mature trees within the three
blocks of [the] Mall that are bordered by Kern . . . on the south and Fresno
. . . on the north will be retained under this Alternative. However, the
majority of the trees within [the] Mall will be removed during the
construction of standard streets along the remaining three block[s] of [the]
Mall as well as the cross malls, as well as those trees found unsuitable for
preservation. The removal of the trees will result in a short-term significant
visual alteration to the existing views within [the] Mall. This Alternative
could include the installation of replacement trees; however, similar to
Project Options 1 and 2, the replacement trees would not reach maturity
until [five] to 10 years, resulting in a short-term significant impact on the
existing visual character of the . . . Mall. Since this Alternative would
continue to provide visual relief as well as shade within three blocks of
[the] Mall during construction activities, this Alternative would result in
less short-term aesthetic impacts compared to Project Options 1 and 2;
however, the short-term aesthetics impacts associated with this Alternative
would remain significant and unavoidable.
“Historical Resources [¶] Under this Alternative, the features that
contribute to the historic resource along three blocks of the Fulton
alignment would be restored and rehabilitated consistent with the Secretary
of the Interior Standards for the Rehabilitation of Historic Properties.
However, since standard streets will be installed within the majority of the
. . . Mall, the integrity of the . . . Mall as a historical resource is not
expected to remain. Therefore, [the] Mall is not expected to remain a[]
historical resource on the [CRHR]. Similar to Project Options 1 and 2, the
implementation of this Alternative would result in a significant and
unavoidable impact on a[] historical resource. [¶] . . . [¶]
“Conclusion and Relationship to Project Objectives [¶] This Alternative
would result in less impacts to aesthetics . . . . Similar to Project Options 1
and 2, this Alternative is expected to result in a significant and unavoidable
impact on a[] historical resource. Overall, this Alternative would be
environmentally superior compared to the proposed [P]roject.
64.
“This Alternative would provide an increase in access to portions of the
Mall; however, this increase could only be provided on the portions of the
Mall that include streets. This Alternative could provide parking within
those areas proposed with streets; however, [it] would not provide parking
along the entire Fulton alignment. This Alternative would provide for
multi-modal access options, but not along the entire Fulton alignment. The
addition of the northernmost and southernmost blocks and the cross streets
would provide increased visibility to a portion of the businesses, offices,
and other amenities along the Fulton alignment. Although limited visibility
is provided under this Alternative, it would not add on-street parking along
the entire length of the Fulton . . . alignment. This Alternative could
provide a greater public use of the Mall compared to existing conditions;
however, the use of the Mall is expected to be less than the placement of a
two-way, two-lane street along the entire length of the Fulton alignment
and the cross streets. . . . [T]his Alternative is expected to reduce ground
floor vacancies and increase annual gross retail sales within the Mall.
However, this Alternative is not expected to result in as much of a
reduction as Project Options 1 and 2 and as much of an increase in annual
gross retail sales as Options 1 and 2 because Project Options 1 and 2
include[] the installation of a two-way, two[-]lane street as well as parking
along the entire Fulton alignment. This Alternative would not maximize
sustainable development and economic productivity in conjunction with
other downtown redevelopment projects while complying with the
requirement to receive federal transportation grant funds to minimize harm
to the historic site resulting from the Project. This Alternative would
provide greater public use of the Mall compared to existing conditions;
however, the long-term public use of the Mall may not be greater than
Project Options 1 and 2. The current federal grants secured by the City for
the . . . Project would not qualify for use by this Alternative.
Transportation projects throughout the City each year have been funded
through federal, State, and local funds and no direct funds from the City[’s]
. . . General Fund because the City does not allocate General Fund monies
for transportation projects within the City. At this time, City staff is
unaware of funding sources that are available to fund this Alternative, and
there is no reasonable expectation to obtain funding for this Alternative.”
The draft EIR was circulated for public review from November 27, 2013, to
January 13, 2014. Thereafter, City received and responded to various comments and
prepared a final EIR.
65.
On February 27, 2014, City Council certified the final EIR, made written findings
for each significant environmental effect identified,36 and approved the Project. It
selected Option 1 as the “preferred build alternative”:
“[C]ompared to Option 2, Option 1 provides greater benefits with respect to
safety, in that the straight street that Option 1 creates will be easier for
drivers to navigate and understand; and the greater number of on-street
parking spaces will serve to slow vehicle traffic while providing a
consistent buffer between vehicles on the street and pedestrians on the
sidewalk . . . .
“. . . [C]ompared to Option 2, Option 1 provides greater benefits
with respect to economics and functionality, in that Option 1 creates
approximately 190 new on-street parking spaces within the . . . Mall area,
as opposed to approximately 82 spaces in Option 2; these on-street parking
spaces can double as vendor booth spaces during events, accommodating
more event activity; the ease of navigating the straight street accommodates
more scanning by drivers of the area’s sidewalks and storefronts; and the
straight street layout accommodates larger delivery vehicles . . . .
“. . . [C]ompared to Option 2, Option 1 provides greater benefits
with respect to the pedestrian experience and landscape character, in that
Option 1 creates a consistent area of at least 28 feet in width for pedestrian
travel, artwork, and seating, better maintaining the linear feel of a
pedestrian mall; Option 1 provides more space for new artwork to be
installed over time; the uniformly wide 28-foot promenade area creates
more opportunities to plant trees away from basements and provide
afternoon shade to the eastern sidewalk; the rescaled fountains more typical
of Option 1 will better fit proportionally with the width of this promenade
reduced from 80 feet; the straight street of Option 1 never creates the
illusion of vehicles driving toward the sidewalk near curves, as can occur in
Option 2; and Option 1 avoids the narrow sidewalks that occur in several
instances in Option 2 . . . .
“. . . [C]ompared to Option 2, Option 1 provides greater benefits
with respect to construction and maintenance, in that rescaled fountains
may reduce maintenance costs and energy and water use over time; smaller
transit and paratransit vehicles may find the straight streets with more
36 City Council adopted a statement of overriding considerations.
66.
parking spaces easier to navigate; and the consistent curb line avoids
narrow sidewalks over building basements . . . . [¶] . . . [¶]
“. . . Option 1 meets the basic, identified [P]roject objectives,
including maximization of economic productivity, improved multimodal
circulation and access, greater public use, and the ability to fund the
reconstruction with sources other than the . . . General Fund . . . .”37
DISCUSSION
I. Collateral Estoppel.
Caltrans, acting on behalf of the FHWA, approved federal funds for the Project in
May 2014. Thereafter, Coalition, inter alios, filed an action under the federal
Administrative Procedure Act (5 U.S.C. § 701 et seq.), alleging Caltrans38 violated
NEPA by not preparing an environmental impact statement, and violated Section 4(f) of
the Federal Transportation Act by preparing a deficient environmental assessment of the
Project’s use of historic sites and public parks. (Bitters, supra, 2016 U.S.Dist. Lexis
4400, at pp. 1-2.) On January 12, 2016, the United States District Court for the Eastern
District of California denied Coalition’s motion for summary judgment and granted
Caltrans’ and City’s motions for summary judgment. (Id. at pp. 3, 71.)
City now asserts Coalition “is collaterally estopped from litigating most, if not all,
issues” raised in the instant case because “those issues have already been decided” in
Bitters. City contends the federal standard for collateral estoppel applies. Under federal
law, collateral estoppel applies if, inter alia, “ ‘ “the issue at stake [is] identical to the one
alleged in the prior litigation.” ’ ” (McQuillion v. Schwarzenegger (9th Cir. 2004) 369
F.3d 1091, 1096; see Lucido v. Superior Court (1990) 51 Cal. 3d 335, 341 [collateral
37 These findings were based on Royston, Hanamoto, Alley & Abey’s comparative
analysis of Options 1 and 2 in its November 13, 2013, report. (See ante, at p. 8, fn. 10.)
38 Under NEPA and Section 4(f) of the Federal Transportation Act (49 U.S.C.
§ 303(c)), Caltrans, not the city, was the lead agency. (Bitters v. Federal Highway
Admin. (E.D.Cal. Jan. 12, 2016, No. 1:14-cv-01646-KJM-SMS) 2016 U.S.Dist. Lexis
4400, p. 17 & fn. 13 (Bitters).)
67.
estoppel applies when “the issue sought to be precluded from relitigation [is] identical to
that decided in a former proceeding”].) City claims the issues at stake are identical
because the Project is the same, the alleged defects in the environmental investigation by
Caltrans and by City are the same, and the standard of review of lead agency
investigation is the same under NEPA and CEQA.
We find the issues at stake are not identical. Here, Coalition filed the writ petition
challenging lead agency City’s actions under CEQA and appealed from the trial court’s
decision that City’s EIR complied with CEQA. The sole defendant in this case is City.
In Bitters, the defendants were City, the FHWA, the administrator of the FHWA,
Caltrans, the director of Caltrans, the DOT, and the director of the DOT. The federal
district court acknowledged the defendants “undertook several environmental review
processes to evaluate the development options for the Fulton Mall,” but the two at issue
were “the NEPA and Section 4(f) processes.” (Bitters, supra, 2016 U.S.Dist. Lexis 4400,
at p. 12.) Coalition did not bring any CEQA claims in the federal action and the federal
district court did not evaluate or rule on the adequacy of City’s actions under CEQA.
City argues, however, the federal district court’s ruling regarding NEPA and
Section 4(f) compliance by Caltrans precludes us from determining whether City
complied with CEQA because “CEQA was modeled after . . . NEPA, and courts routinely
look to case law interpretations of NEPA as persuasive authority in CEQA cases.” No
authority is cited, however, for the proposition a federal district court ruling on NEPA
and Section 4(f) compliance precludes a state court ruling on CEQA compliance.
Furthermore, Coalition points to two parallel federal and state court rulings regarding the
sufficiency of environmental reviews of projects under NEPA and CEQA: (1) Laub v.
U.S. Dept. of Interior (9th Cir. 2003) 342 F.3d 1080 and In re Bay-Delta etc. (2008) 43
Cal. 4th 1143 [environmental evaluation of the CALFED Bay-Delta Program]; and (2)
Center for Biol. Diver. v. Federal Highway Admin. (S.D.Cal. 2003) 290 F. Supp. 2d 1175
68.
and National Enterprises, Inc. v. State Dept. of Transportation (Feb. 27, 2008, No.
D050411) [nonpub. opn.] [State Route 125 South toll road construction project].
The issue before us—i.e., City’s compliance with CEQA—is not identical to the
issues ruled on in Bitters. Collateral estoppel does not preclude the litigation in this case.
II. Overview of CEQA.
“CEQA is a comprehensive scheme designed to provide long-term protection to
the environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal. 4th
105, 112 (Mountain Lion), citing § 21001.) The statute “contains a ‘substantive mandate’
requiring public agencies to refrain from approving projects with significant
environmental effects if ‘there are feasible alternatives or mitigation measures’ that can
substantially lessen or avoid those effects.” (County of San Diego v. Grossmont-
Cuyamaca Community College Dist. (2006) 141 Cal. App. 4th 86, 98, italics omitted,
quoting Mountain Lion, supra, at p. 134; accord, §§ 21002, 21081.)
“Whenever a project may have a significant and adverse physical effect on the
environment, an EIR must be prepared and certified.”39 (Mountain Lion, supra, 16
Cal.4th at p. 113, citing § 21100, subd. (a); accord, § 21151, subd. (a).) “The steps in the
process include the preparation of a draft EIR; the circulation of that draft for comment;
the preparation of a final EIR which responds to those comments; and the certification
that the final EIR has been completed in compliance with CEQA.” (Sunset Drive Corp.
39 The lead agency, i.e., the public agency principally responsible for carrying out or
approving a project (Guidelines, § 15367), will normally take up to three separate steps in
deciding which document to prepare for the project (id., § 15002, subd. (k)). In the first
step, the agency determines whether the project is subject to CEQA. If the project is
exempt, the inquiry ends and the agency may prepare a notice of exemption. (Guidelines,
§ 15002, subd. (k)(1).) If the project is not exempt, the agency takes the second step and
conducts an initial study. If the study shows there is no substantial evidence that the
project may have a significant environmental effect, the inquiry ends and the agency
prepares a negative declaration. (Id., subd. (k)(2).) If the study shows otherwise, the
agency takes the third step and prepares an EIR. (Id., subd. (k)(3).)
69.
v. City of Redlands (1999) 73 Cal. App. 4th 215, 220.) The EIR “is the mechanism
prescribed by CEQA to force informed decision making and to expose the decision
making process to public scrutiny.” (Planning & Conservation League v. Department of
Water Resources (2000) 83 Cal. App. 4th 892, 910.) As “ ‘the heart of CEQA’ ” (Laurel
Heights I, supra, 47 Cal.3d at p. 392, quoting Guidelines, § 15003, subd. (a)), the EIR
“provides the public and responsible government agencies with detailed information on
the potential environmental consequences of an agency’s proposed decision,” and
“describes ways to minimize significant environmental effects, and suggests alternatives
to the project, including the option of ‘no project’ ” (Mountain Lion, supra, 16 Cal.4th at
p. 113, citing § 21061; accord, § 21002.1, subd. (a)).
“ ‘CEQA does not, indeed cannot, guarantee that [governmental] decisions will
always be those which favor environmental considerations.’ [Citation.] ‘If economic,
social, or other conditions make it infeasible to mitigate one or more significant effects
on the environment of a project, the project may nonetheless be carried out or approved at
the discretion of a public agency if the project is otherwise permissible under applicable
laws and regulations.’ [Citation.] ‘CEQA recognizes that in determining whether and
how a project should be approved, a public agency has an obligation to balance a variety
of public objectives, including economic, environmental, and social factors . . . .’
[Citation.] While ‘CEQA requires the decision-making agency to balance, as applicable,
the economic, legal, social, technological, or other benefits . . . of a proposed project
against its unavoidable environmental risks when determining whether to approve the
project,’ ‘the adverse environmental effects may be considered “acceptable” ’ ‘[i]f the
specific economic, legal, social, technological, or other benefits . . . of a proposal project
outweigh the unavoidable adverse environmental effects . . . .’ [Citation.]” (Cedar Fair,
L.P. v. City of Santa Clara (2011) 194 Cal. App. 4th 1150, 1174.)
70.
III. Standard of review.
Coalition emphasizes “City failed to proceed as required by law and failed to
comply with CEQA’s information disclosure requirements. To the extent . . . City made
a ‘factual’ finding that the EIR complied with CEQA’s informational disclosure
requirements, [Coalition] maintains that the finding is based upon faulty interpretations of
CEQA’s substantive and procedural mandates.” (Fn. omitted.)
“In reviewing an agency’s compliance with CEQA in the course of its legislative
or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a
prejudicial abuse of discretion.’ ” (Vineyard Area Citizens for Responsible Growth, Inc.
v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 426 (Vineyard), quoting § 21168.5.)
“Such an abuse 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.’
[Citations.]” (Vineyard, supra, at pp. 426-427.)
“[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.” (Vineyard, supra, 40 Cal.4th at p. 435.) “[W]e determine de novo
whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all
legislatively mandated CEQA requirements’ [citation] . . . .” (Vineyard, supra, 40
Cal.4th at p. 435.) For instance, “[w]hen an agency fails to include information mandated
by CEQA in the environmental analysis, the agency fails to proceed in a manner required
by law.” (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal. App. 4th 1,
12 (San Diego Citizenry Group); cf. ibid. [“[W]here the agency includes the relevant
information, but the [factual] adequacy of the information is disputed, the question is one
of substantial evidence.”]; see Association of Irritated Residents v. County of Madera
(2003) 107 Cal. App. 4th 1383, 1392 [“[T]he existence of substantial evidence supporting
the agency’s ultimate decision on a disputed issue is not relevant when one is assessing a
violation of the information disclosure provisions of CEQA.”].) “The determination of
71.
whether an agency has proceeded in the manner required by law is based on a review of
the record as a whole: ‘Where some facts show a failure to comply, but the record as a
whole supports a finding of compliance, courts should find compliance based on the
evidence in the whole record.’ [Citations.]” (San Diego Citizenry Group, supra, at
pp. 12-13.)
An EIR is presumed adequate under CEQA and a petitioner in a CEQA action has
the burden of proving otherwise. (Rialto Citizens for Responsible Growth v. City of
Rialto (2012) 208 Cal. App. 4th 899, 924-925; Concerned Citizens of South Central L.A. v.
Los Angeles Unified School Dist. (1994) 24 Cal. App. 4th 826, 836.)
“An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial
court’s: [t]he appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo.” (Vineyard, supra, 40
Cal.4th at p. 427; see Association of Irritated Residents v. County of Madera, supra, 107
Cal.App.4th at p. 1390 [“ ‘The appellate court reviews the administrative record
independently; the trial court’s conclusions are not binding on it.’ ”].)
IV. Analysis.
a. City did not prematurely approve the Project in advance of CEQA
review.40
“A claim . . . that the lead agency approved a project with potentially significant
environment effects before preparing and considering an EIR for the project ‘is
predominantly one of improper procedure’ [citation] to be decided by the courts
40 City argues this issue cannot be raised here because Coalition did not previously
bring a validation action pursuant to Code of Civil Procedure section 863. However, City
fails to cite the provision of law requiring a validation proceeding in this instance. (See
Code Civ. Proc., § 860; Fontana Redevelopment Agency v. Torres (2007) 153
Cal. App. 4th 902, 909 [“The validation procedure must be separately authorized by
another statute other than the general validation statute itself . . . .”].)
72.
independently. The claim goes not to the validity of the agency’s factual conclusions but
to the required timing of its actions.” (Save Tara v. City of West Hollywood (2008) 45
Cal. 4th 116, 131, italics omitted (Save Tara).)
“Under CEQA, local agencies must prepare or cause to be prepared, certify as
complete, and consider a final EIR before approving or disapproving any project they
propose to ‘carry out or approve,’ if the project may have significant environmental
effects. [Citations.]” (Neighbors for Fair Planning v. City and County of San Francisco
(2013) 217 Cal. App. 4th 540, 547; accord, Laurel Heights I, supra, 47 Cal.3d at p. 394.)
“ ‘Approval’ means the decision by a public agency which commits the agency to a
definite course of action in regard to a project intended to be carried out by any person.”
(Guidelines, § 15352, subd. (a).)
The challenge is determining “when an agency’s [decision] ripens into a
‘commit[ment]’ ” “required under [CEQA] to have been preceded by preparation of an
EIR.” (Save Tara, supra, 45 Cal.4th at pp. 122, 130.) Our Supreme Court provided
direction in Save Tara.41 In that case, Laurel Place, a nonprofit developer, proposed to
construct affordable senior housing on property owned by the City of West Hollywood.
(Save Tara, supra, at p. 122.) The property in question, identified as 1343 Laurel,
contained a historic main house, chauffeur’s house, and garage. (Ibid.) The main house
had been converted into four apartments, which were still occupied by tenants. (Id. at pp.
122-123.) Laurel Place planned to preserve but repurpose the main house and replace the
chauffeur’s house and garage with a three-story building. (Id. at pp. 122, 125.)
On May 3, 2004, the city council authorized a draft agreement to (1) convey 1343
Laurel to Laurel Place for the express purpose of “ ‘caus[ing] the reuse and
redevelopment of [1343 Laurel] with affordable housing for seniors’ ”; and (2) loan
41 Although Save Tara dealt with a private project (see Guidelines, § 15377), “the
principles [it] articulate[d] apply equally to public projects” (City of Irvine v. County of
Orange (2013) 221 Cal. App. 4th 846, 859 (Irvine)).
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$1 million to Laurel Place to “ ‘facilitate development of the project and begin[] the
process of working with [1343 Laurel’s existing] tenants to explore relocation options.’ ”
(Save Tara, supra, 45 Cal.4th at p. 124). Nearly half of this loan, i.e., $475,000, was to
be advanced and used for environmental reports, governmental permits and fees, and
other “predevelopment” items. (Id. at pp. 124, 125, 140.) In addition, tenant relocation
was to be completed “before final project approval was given and the property conveyed
. . . .” (Id. at p. 142, italics omitted.)
Under the draft agreement, the city’s obligation to convey 1343 Laurel and lend
money to Laurel Place was subject to several conditions, “among them that ‘[a]ll
applicable requirements of CEQA . . . have been satisfied, as reasonably determined by
the [c]ity [m]anager’ and that ‘[the] [d]eveloper shall have obtained all [e]ntitlements.’ ”
(Save Tara, supra, 45 Cal.4th at p. 124, fn. omitted.) However, “[t]he city manager . . .
could waive these conditions” (ibid.) and “[t]he predevelopment portion of the loan . . .
was not subject to the CEQA compliance or entitlement conditions” (id. at pp. 124-125).
The city would not approve a final EIR until October 2006 (Save Tara, supra, 45
Cal.4th at p. 127), nearly two and a half years after the city council authorized the draft
agreement (id. at p. 124).
On July 12, 2004, Save Tara, a group composed of city residents opposing the
project, petitioned for a writ of mandate, alleging “th[e] [c]ity had violated CEQA by
failing to prepare an EIR before the city council’s May 3[, 2004,] approval of the loan
and draft agreement.” (Save Tara, supra, 45 Cal.4th at p. 125.) On August 9, 2004, the
city and Laurel Place executed a revised agreement (ibid.), which (1) abrogated the city
manager’s power to waive the CEQA compliance condition; (2) clarified “[the] [c]ity
retained ‘complete discretion over . . . any actions necessary to comply with CEQA’ and
. . . the agreement ‘imposes no duty on [the] [c]ity to approve . . . any documents
prepared pursuant to CEQA’ ”; and (3) indicated Laurel Place “was to begin the [tenant
relocation] process by hiring a relocation consultant within 30 days.” (Id. at p. 126,
74.
italics omitted.) Save Tara’s petition was treated as amended to address both the May 3,
2004, draft agreement and the August 9, 2004, revised agreement. (Id. at p. 125, fn. 5.)
The superior court denied the petition, reasoning an EIR “was [not] required
before approving the May 3[, 2004,] draft agreement because ‘the [a]greement is
expressly conditioned on compliance with CEQA . . . [and] does not limit the project
alternatives or possible mitigation measures.’ ” (Save Tara, supra, 45 Cal.4th at p. 126.)
“Thus, [the] [c]ity ‘has not given its final approval to convey the property at issue to
[Laurel Place], nor has it given its final approval of the housing project itself.’ ” (Ibid.)
The Second Appellate District reversed, countering (1) an EIR must be prepared
“whenever lead agencies ‘propose to approve or carry out’ a project with potential
significant effects” and “ ‘[cannot] be delayed until a “final” decision has been made’ ”;
and (2) “conditioning a development agreement on CEQA compliance is insufficient
because the EIR review process ‘is intended to be part of the decisionmaking process
itself, and not an examination, after the decision has been made, of the possible
environmental consequences of the decision.’ ” (Ibid., italics omitted.) The appellate
court opined: “Any question as to whether a particular point in the development process
is too early for preparation of an EIR ‘is resolved by the pragmatic inquiry whether there
is enough information about the project to permit a meaningful environmental
assessment. If the answer is yes, the EIR review process must be initiated.’ ” (Ibid.)
Because “the project was well enough defined” “[b]efore May 3, 2004,” “[the] [c]ity
should have performed” “meaningful environmental analysis.” (Ibid.)
On appeal, the Supreme Court declined to endorse either the superior court’s
“ ‘final approval’ ” standard or the Second Appellate District’s “well enough defined”
touchstone. It explained:
“This court, like the . . . Guidelines, has . . . recognized two
considerations of legislative policy important to the timing of mandated
EIR preparation: (1) that CEQA not be interpreted to require an EIR before
the project is well enough defined to allow for meaningful environmental
75.
evaluation; and (2) that CEQA not be interpreted as allowing an EIR to be
delayed beyond the time when it can, as a practical matter, serve its
intended function of informing and guiding decision makers. [¶] . . . To
be consistent with CEQA’s purposes, the line must be drawn neither so
early that the burden of environmental review impedes the exploration and
formulation of potentially meritorious projects, nor so late that such review
loses its power to influence key public decisions about those projects.
[¶] . . . [¶]
“The May 3[, 2004,] draft agreement and August 9[, 2004,] executed
agreement conditioned [the] [c]ity’s obligation to convey the property to
Laurel Place for development on all applicable requirements of CEQA
having been satisfied. [The] [c]ity and Laurel Place contend such a CEQA
compliance condition on an agreement to convey or develop property
eliminates the need for preparation of an EIR (or any other CEQA
document) before an agency approves the agreement. In contrast, Save
Tara . . . maintains that permitting a CEQA compliance condition to
postpone environmental review until after an agreement on the project has
been reached would render the EIR requirement a ‘dead letter.’ We adopt
an intermediate position: [a] CEQA compliance condition can be a
legitimate ingredient in a preliminary public-private agreement for
exploration of a proposed project, but if the agreement, viewed in light of
all the surrounding circumstances, commits the public agency as a practical
matter to the project, the simple insertion of a CEQA compliance condition
will not save the agreement from being considered an approval requiring
prior environmental review. [¶] . . . [¶]
“[The] [c]ity and Laurel Place apparently would limit the
‘commit[ment]’ that constitutes approval of a private project for CEQA
purposes [citation] to unconditional agreements irrevocably vesting
development rights. . . . On this theory, any development agreement, no
matter how definite and detailed, even if accompanied by substantial
financial assistance from the agency and other strong indications of agency
commitment to the project, falls short of approval so long as it leaves final
CEQA decisions to the agency’s future discretion. [¶] . . . [¶] . . .
[L]imiting approval to unconditional agreements that irrevocably vest
development rights would ignore what we have previously recognized, that
postponing environmental analysis can permit ‘bureaucratic and financial
momentum’ to build irresistibly behind a proposed project, ‘thus providing
a strong incentive to ignore environmental concerns.’ [Citation.]
“A public entity that, in theory, retains legal discretion to reject a
proposed project may, by executing a detailed and definite agreement with
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the private developer and by lending its political and financial assistance to
the project, have as a practical matter committed itself to the project. When
an agency has not only expressed its inclination to favor a project, but has
increased the political stakes by publicly defending it over objections,
putting its official weight behind it, devoting substantial public resources to
it, and announcing a detailed agreement to go forward with the project, the
agency will not be easily deterred from taking whatever steps remain
toward the project’s final approval. [¶] . . . [¶]
“We note as well that postponing EIR preparation until after a
binding agreement for development has been reached would tend to
undermine CEQA’s goal of transparency in environmental decisionmaking.
Besides informing the agency decision makers themselves, the EIR is
intended ‘to demonstrate to an apprehensive citizenry that the agency has in
fact analyzed and considered the ecological implications of its actions.’
[Citations.] When an agency reaches a binding, detailed agreement with a
private developer and publicly commits resources and governmental
prestige to that project, the agency’s reservation of CEQA review until a
later, final approval stage is unlikely to convince public observers that
before committing itself to the project the agency fully considered the
project’s environmental consequences. Rather than a ‘document of
accountability’ [citation], the EIR may appear, under these circumstances, a
document of post hoc rationalization.[42]
“On the other hand, we cannot agree with the suggestion . . . that any
agreement, conditional or unconditional, would be an ‘approval’ requiring
prior preparation of CEQA documentation if at the time it was made the
project was sufficiently well defined to provide ‘ “meaningful information
for environmental assessment.” ’ [Citation.] On this theory, once a private
project had been described in sufficient detail, any public-private agreement
related to the project would require CEQA review.
“. . . Agencies sometimes provide preliminary assistance to persons
proposing a development in order that the proposal may be further
explored, developed[,] or evaluated. Not all such efforts require prior
CEQA review. [Citation.] Moreover, privately conducted projects often
42 The Supreme Court also noted the city and Laurel Place’s preferred rule was not
consistent with section 15352, subdivision (b), of the Guidelines. (Save Tara, supra, 45
Cal.4th at p. 134; see Guidelines, § 15352, subd. (b) [“With private projects, approval
occurs upon the earliest commitment to issue or the issuance by the public agency of a
discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease,
permit, license, certificate, or other entitlement for use of the project.” (italics added)].)
77.
need some form of government consent or assistance to get off the ground,
sometimes long before they come up for formal approval. Approval, within
the meaning of [CEQA], cannot be equated with the agency’s mere interest
in, or inclination to support, a project, no matter how well defined. ‘If
having high esteem for a project before preparing an . . . EIR . . . nullifies
the process, few public projects would withstand judicial scrutiny, since it
is inevitable that the agency proposing a project will be favorably disposed
toward it.’ [Citation.]
“. . . [C]ities often reach purchase option agreements, memoranda of
understanding, exclusive negotiating agreements, or other arrangements
with potential developers, especially for projects on public land, before
deciding on the specifics of a project. Such preliminary or tentative
agreements may be needed in order for the project proponent to gather
financial resources for environmental and technical studies, to seek needed
grants or permits from other government agencies, or to test interest among
prospective commercial tenants. While we express no opinion on whether
any particular form of agreement . . . constitutes project approval, we take
the . . . point that requiring agencies to engage in the often lengthy and
expensive process of EIR preparation before reaching even preliminary
agreements with developers would unnecessarily burden public and private
planning. CEQA review was not intended to be only an afterthought to
project approval, but neither was it intended to place unneeded obstacles in
the path of project formulation and development.” (Save Tara, supra, 45
Cal.4th at pp. 130-132, 134-137, fns. omitted.)
Accordingly, the Supreme Court promoted a fact-sensitive inquiry:
“Desirable . . . as a bright-line rule defining when an approval occurs
might be, neither of those proposed . . . is consistent with CEQA’s
interpretation and policy foundation. Instead, we apply the general
principle that before conducting CEQA review, agencies must not ‘take any
action’ that significantly furthers a project ‘in a manner that forecloses
alternatives or mitigation measures that would ordinarily be part of CEQA
review of that public project.’ [Citations.]
“In applying this principle to conditional development agreements,
courts should look not only to the terms of the agreement but to the
surrounding circumstances to determine whether, as a practical matter, the
agency has committed itself to the project as a whole or to any particular
features, so as to effectively preclude any alternatives or mitigation
measures that CEQA would otherwise require to be considered, including
the alternative of not going forward with the project. [Citation.] In this
analysis, the contract’s conditioning of final approval on CEQA compliance
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is relevant but not determinative.” (Save Tara, supra, 45 Cal.4th at
pp. 138-139.)
Applying the aforementioned balancing test, the Supreme Court concluded the
authorization of the May 3, 2004, draft agreement and the execution of the August 9,
2004, revised agreement constituted an approval that should have been prefaced by an
EIR. (Save Tara, supra, 45 Cal.4th at pp. 121-122, 140.) The high court pointed to the
contractual language, which (1) “forthrightly stated the[] purpose was to ‘cause the reuse
and redevelopment’ of 1343 Laurel in accordance with the project” (id. at p. 140); (2)
advanced nearly half of a $1 million loan to Laurel Place without conditioning the outlay
on CEQA compliance, meaning the city risked wasting $475,000 “unless [it] gave final
approval to the project in some form” (Save Tara, supra, at p. 140); and (3) specified the
relocation of 1343 Laurel’s preexisting tenants would be completed “before final project
approval was given and the property conveyed to Laurel Place” (id. at p. 142). In
particular, the Supreme Court considered tenant relocation “a significant step in [the]
redevelopment project’s progress” “likely to be irreversible” and found the city’s
“willingness to begin that process as soon as the conditional development agreement was
executed, and to complete it before certifying an EIR and finally approving the project,
tends strongly to show th[e] [c]ity’s commitment to the 1343 Laurel project was not
contingent on review of an EIR.” (Ibid.)
The high court also examined the rest of the administrative record and found
indicia of the city’s commitment predating the authorization of the May 3, 2004, draft
agreement: (1) the city manager facilitated Laurel Place’s 2003 HUD grant application
by informing the federal agency in a June 10, 2003, letter that the city “ ‘has approved the
sale of the property’ and ‘will commit’ up to $1 million in financial aid” (Save Tara,
supra, 45 Cal.4th at pp. 122-123, 141); (2) shortly after Laurel Place received a
$4.2 million HUD grant in late 2003, the mayor and the city’s newsletter publicly
announced the funding was earmarked for the construction of affordable senior housing
79.
at 1343 Laurel (id. at pp. 123, 141); (3) in late 2003, the city’s housing manager and
relocation consultants informed 1343 Laurel’s preexisting tenants that they would be
evicted in approximately one year (id. at pp. 123, 142); (4) in January 2004, city officials
told residents opposing the project “that while ‘variations’ on the proposal would be
entertained, [the] [c]ity ‘must continue on a path that fulfills this obligation’ to redevelop
the property for senior housing” “ ‘inasmuch as the [c]ity and [Laurel Place] have been
awarded a $4.2 million federal grant to help develop this project for senior housing’ ” (id.
at pp. 123, 141); and (5) at a May 3, 2004, city council meeting, the city’s housing
manager remarked that “while there were ‘options to consider’ regarding the project
design, options for other uses of the property . . . had already been ruled out” (id. at
pp. 141-142; see id. at p. 125).
Finally, the Supreme Court deemed the CEQA compliance provision ineffectual
because (1) the language that “all ‘requirements of CEQA’ be ‘satisfied . . .’ arguably left
open the question whether [the] [c]ity remained free to find that the EIR was legally
adequate and yet . . . reject the project on substantive environmental grounds” since “[a]n
EIR that ‘satisfies’ CEQA ‘requirements’ may nonetheless demonstrate the project
carries with it significant immitigable adverse effects” (Save Tara, supra, 45 Cal.4th at
pp. 140-141); and (2) the question of “whether CEQA requirements had been met was to
be ‘reasonably determined by the [c]ity manager’ ” (id. at p. 140), but the agreement “had
no provision for appealing to the city council the city manager’s decision on, or waiver
of, CEQA compliance” (id. at p. 141), amounting to an impermissible delegation of the
city council’s legal responsibility to assess environmental impacts (ibid.).43
43 The Supreme Court discounted the city’s attempt to correct these faults in the
August 9, 2004, revised agreement, emphasizing “the city council had already approved
the May 3[, 2004,] draft agreement . . . [and] shown a willingness to give up further
authority over CEQA compliance in favor of dependence on the city manager’s
determination.” (Save Tara, supra, 45 Cal.4th at p. 141.) The high court continued:
“Given that history, as well as the other circumstances discussed . . . , [the] [c]ity’s
80.
In the instant case, Coalition claims City “ ‘as a practical matter . . . committed
itself to the [P]roject . . . so as to effectively preclude’ any full or partial restoration
alternative” “due to the constraints of federal funding,” namely those of the TIGER grant.
Coalition adds “City’s actions to secure the grant funding effectively precluded a project
formulation that featured the full or partial restoration of the . . . Mall.”
To the extent Coalition suggests a lead agency’s pursuit and procurement of
funding for a proposed project necessarily constitutes an approval that was “required
under [CEQA] to have been preceded by preparation of an EIR” (Save Tara, supra, 45
Cal.4th at p. 122; see id. at p. 130), we disagree. As previously mentioned, CEQA
“contains a ‘substantive mandate’ requiring public agencies to refrain from approving
projects with significant environmental effects if ‘there are feasible alternatives or
mitigation measures’ that can substantially lessen or avoid those effects. [Citations.]”
(County of San Diego v. Grossmont-Cuyamaca Community College Dist., supra, 141
Cal.App.4th at p. 98, some italics omitted.) “ ‘Feasible’ means capable of being
accomplished in a successful manner within a reasonable period of time, taking into
account economic, environmental, legal, social, and technological factors.” (Guidelines,
§ 15364, italics added; accord, §§ 21061.1, 21081, subd. (a)(3); Guidelines, §§ 15126.6,
subd. (f)(1), 15131, subd. (c); see Concerned Citizens of South Central L.A., supra, 24
Cal.App.4th at p. 841 [“[CEQA] does not demand what is not realistically possible, given
the limitation of time, energy[,] and funds.” (italics added)].) Given the availability of
funding is clearly relevant to the question of economic feasibility, i.e., whether the
difference between the cost of a proposed project and the cost of an alternative is “ ‘so
great that a reasonably prudent [person] would not proceed with the [alternative]’ ”
(Sustainability, Parks, Recycling & Wildlife Legal Defense Fund v. San Francisco Bay
‘apprehensive citizenry’ [citation] could be forgiven if they were skeptical as to whether
the city council would give adverse impacts disclosed in the EIR full consideration before
finally approving the project.” (Ibid.)
81.
Conservation & Development Com. (2014) 226 Cal. App. 4th 905, 918), we find untenable
an interpretation of CEQA that dissuades a project proponent from marshaling financial
resources until after the EIR process is fully completed. (See Guidelines, § 15126.6,
subd. (a) [“An EIR shall describe a range of reasonable alternatives to the project, . . .
which would feasibly attain most of the basic objectives of the project but would avoid or
substantially lessen any of the significant effects of the project . . . . An EIR need not
consider every conceivable alternative to a project. Rather[,] it must consider a
reasonable range of potentially feasible alternatives that will foster informed
decisionmaking and public participation.”].) As the Supreme Court proclaimed, “the line
must [not] be drawn . . . so early that the burden of environmental review impedes the
exploration and formulation of potentially meritorious projects . . . .” (Save Tara, supra,
45 Cal.4th at pp. 130-131.)
Nonetheless, we acknowledge a public agency may be found to have prematurely
approved a project in advance of CEQA review if an “examin[ation] [of] the terms of the
[funding] [a]pplication and the surrounding circumstances” (Irvine, supra, 221
Cal.App.4th at p. 860) demonstrates the agency was “committed . . . to the [project] in a
manner that effectively precluded it from considering any project alternatives or
mitigation measures under CEQA” (ibid.). We find instructive the Fourth Appellate
District’s decision in Irvine.44
In Irvine, the County of Orange sought to expand James A. Musick Facility, a
minimum security jail the county operated on unincorporated land adjacent to the City of
Irvine. (Irvine, supra, 221 Cal.App.4th at p. 851.) In 2007, the Legislature passed
Assembly Bill No. 900, which “provide[d] funding for local jail construction in two
44 Coalition argues Irvine is irrelevant because the case “is about the need for
supplemental environmental review, not environmental review in the first instance, as
here.” While we recognize Irvine involved a supplemental EIR, the Fourth Appellate
District’s holding was based on CEQA principles applicable to EIR’s in general.
82.
separate phases [i.e., Phases I and II] . . . .” (Irvine, supra, at p. 852.) During Phase I,
counties were “allowed . . . to apply for a portion of approximately $750 million.” (Ibid.)
During Phase II, counties were “allowed . . . to apply for a portion of an additional $470
million,” provided they “reached certain benchmarks under Phase I.” (Ibid.) In 2011, the
Legislature amended Phase II’s funding provisions by “increas[ing] the amount of funds
available . . . to nearly $603 million” and “eliminat[ing] [the] requirement that counties
reach various benchmarks before receiving state funds.” (Ibid.)
The county completed an application for $100 million in Phase II state funds,
which required a statement of need, a description of the proposed expansion, and budget,
construction and operation plans. (Irvine, supra, 221 Cal.App.4th at pp. 853, 861.) On
December 6, 2011, well before the environmental impacts of the proposed project were
assessed, the county’s board of supervisors authorized the execution and submission of
the Phase II application. (Id. at p. 853.) The city petitioned for a writ of mandate,
claiming the board’s action constituted an approval under CEQA and should have been
preceded by CEQA. (Irvine, supra, at p. 853.) The superior court denied the petition.
(Ibid.)
On appeal, the Fourth Appellate District applied Save Tara’s “ ‘intermediate
position’ . . . examin[ing] the totality of the circumstances and the practical effect of the
public agency’s action on its ability and willingness to modify or reject the proposed
project” (Irvine, supra, 221 Cal.App.4th at p. 857) and concluded “[n]othing in the
[c]ounty’s [Phase II] application, or the state’s later conditional award to the [c]ounty,
committed the [c]ounty to the Musick Facility expansion in a manner that effectively
precluded the [c]ounty from considering any project alternatives or mitigation measures
that CEQA otherwise required” (id. at p. 863). First, “[t]he state’s Request for
Applications made clear the [c]ounty would receive only a ‘conditional award’ if the state
approved the [c]ounty’s application” (id. at p. 861), meaning the county’s Phase II
application “was merely a preliminary step that, if approved by the state, would authorize
83.
the [c]ounty and the state to explore and evaluate the possibility of expanding the Musick
Facility” “using state funds” (id. at pp. 861, 863; see id. at pp. 862-863). Second, “the
[c]ounty, not the state, is designated as the lead agency responsible for complying with
CEQA” (id. at p. 861) and “therefore [retains] . . . discretion to determine whether and
how to mitigate any significant environmental impacts associated with the Musick
Facility expansion and which alternatives, if any, to consider or adopt during the CEQA
process” (ibid.). Third, “[t]he state did not require any form of CEQA documentation as
part of the [c]ounty’s Phase II [a]pplication” (id. at p. 862) and “the state’s tentative
project schedule . . . does not require the [c]ounty to provide documentation of CEQA
compliance until approximately one year after receiving its conditional award” (ibid.).
These facts outweighed those showing (1) the board made certain requisite assurances to
the state in its resolution authorizing the execution and submission of the Phase II
application (id. at pp. 863-864); (2) the county dedicated “substantial” “human and
financial resources to developing the . . . expansion plan and preparing the Phase II
[a]pplication” (id. at pp. 864-865); and (3) the Phase II application provided a “high level
of detail . . . regarding its . . . Musick Facility expansion plan” (id. at p. 865).
In view of Save Tara and Irvine, we conclude City’s pursuit and procurement of
federal funding did not significantly further the Project in a manner that forecloses
meaningful CEQA review. Like the Phase II funds in Irvine, the TIGER grant awarded
to City in September 2013 was conditional. The grant would not be obligated by DOT
until City established the Project would comply with all local, state, and federal
requirements by June 30, 2014, including CEQA, signifying the money could be returned
if the Project fell through.45 Like the county in Irvine, City was not required to submit
CEQA documentation or otherwise finish environmental review before it applied for and
received the TIGER grant. In fact, City had nearly 10 months following receipt of the
45 Similarly, the TCSP funds could also be returned. (See ante, p. 13.)
84.
grant to do so. Furthermore, nothing in the DOT’s “Notice of Funding Availability”
suggested City no longer had the discretion to reject the Project. Given this context, the
fact that City’s highly detailed application provided assurances of project readiness—i.e.,
by confirming the availability of matching funds, anticipating the EIR process would be
completed before the obligation deadline, and appending letters of support from the
mayor,46 federal and state officials, property and business owners, and community
leaders—was less indicative of a binding commitment to the Project and more indicative
of showing City “ha[d] the ability to [proceed] and w[ould] follow [DOT]’s procedures.”
(Irvine, supra, 221 Cal.App.4th at p. 864.)
Other circumstances militated against a finding of premature approval. From the
time when Option 3 was introduced in the draft FCSP, City consistently represented that
it would be subjected to CEQA review. (See ante, pp. 5-6 & fns. 8, 10.) Indeed, instead
of foreclosing review, the EIR considered and rejected Option 3 because it (1) would fail
to satisfy most of the project objectives, such as increasing mobility and multi-modal
access in the Mall area; raising the visibility of Mall businesses, offices, and amenities;
maximizing economic productivity; and securing funding (see Town of Atherton v.
California High-Speed Rail Authority (2014) 228 Cal. App. 4th 314, 353; Rialto Citizens
for Responsible Growth v. City of Rialto, supra, 208 Cal.App.4th at p. 949 [agency may
reject an alternative as infeasible because it cannot meet project objectives]; accord,
Guidelines, § 15126.6, subd. (c)); and (2) would be economically infeasible (see The
Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal. App. 4th 603, 623
46 Although the mayor may make recommendations to City Council (see Fresno City
Charter, article IV, § 400, subd. (j)), she cannot compel City Council to accept them (see
ante, p. 5 & fn. 12).
85.
[agency may reject an alternative of economic infeasibility]).47 By contrast, before
conducting CEQA review, the public agency in Save Tara preemptively ruled out
consideration of alternatives to the proposed senior housing construction project.
Moreover, in Save Tara, supra, 45 Cal. 4th 116 the public agency demonstrated its
commitment to the proposed project was not contingent on CEQA review by
preemptively (1) informing preexisting tenants at 1343 Laurel of their evictions; (2)
entering into a development agreement with Laurel Place to relocate these tenants and
otherwise advance the project; (3) agreeing to irrevocably loan $475,000 to Laurel Place;
and (4) permitting the city manager to waive the requirement for CEQA compliance.
Comparable facts do not exist in the instant case.
Finally, we reject Coalition’s assertion the EIR was “nothing more than a post hoc
rationalization for the [P]roject . . . .” (Italics omitted.) The EIR identified and analyzed
the Project’s significant environmental effects, mitigation measures, and alternatives.
City solicited, considered, and responded to public feedback. In our view, City
performed its obligations under CEQA reasonably, in good faith, and in accordance with
the statute’s intents and purposes. (Cf. California Oak Foundation v. Regents of
University of California (2010) 188 Cal. App. 4th 227, 287-288.)
b. The EIR was legally adequate.
i. As a matter of law, the EIR sufficiently addressed the Project’s
impacts on air quality, greenhouse gas emissions, parks, traffic,
and utilities.
47 The EIR evaluated and rejected Alternative 6.3.4 for the same reasons. Hence, we
reject Coalition’s ancillary contention that City improperly rejected Alternative 6.3.4.
Coalition cites North Coast Rivers Alliance v. Kawamura (2015) 243 Cal. App. 4th
647 (North Coast), but that case is factually inapposite. In North Coast, which concerned
the protection of California’s native plants and agricultural crops from damage by an
invasive moth species, the EIR never considered a control program of integrated pest
management as a reasonable alternative to complete eradication. (See id. at pp. 652-654,
667-670.)
86.
Coalition claims the EIR did not present a legally adequate analysis of the
Project’s effects on air quality, greenhouse gas emissions, parks, traffic, and utilities,
contravening CEQA’s information disclosure requirements. Coalition’s argument,
however, overlooks a critical detail: these effects were examined and deemed less than
significant in City’s initial study.48 (See ante, at pp. 13-45.)
A lead agency must conduct an initial study to determine whether a project may
have a significant effect on the environment. (Guidelines, § 15063, subd. (a); see id.,
subd. (c)(3)(A)-(C) [initial study aids EIR preparation by focusing EIR on effects found
to be significant, identifying effects found not to be significant, and explaining why
certain effects were found not to be significant].) If any aspect of the project may cause a
significant effect, the agency must prepare an EIR (id., subd. (b)(1)(A)), which, in turn,
“shall identify and focus on the significant environmental effects of the proposed
project.” (Guidelines, § 15126.2, subd. (a), italics added; accord, § 21100, subd. (b)(1);
Guidelines, § 15143.) Where a particular effect is found insignificant, however, the EIR
need only “briefly indicate the reasons for determining that the effect is not significant
and therefore not discussing it in detail.” (Citizens to Preserve the Ojai v. County of
Ventura (1985) 176 Cal. App. 3d 421 429; accord, §§ 21002.1, subd. (e), 21100, subd. (c);
Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116
Cal. App. 4th 1099, 1109.) “Such a statement may be contained in an attached copy of an
initial study.” (Guidelines, § 15128; accord, § 15143; see 1 Kostka & Zischke, Practice
48 We point out Coalition does not challenge the initial study on appeal.
We need not afford the parties the opportunity to submit supplemental briefing
pursuant to Government Code section 68081. (See People v. Alice (2007) 41 Cal. 4th
668, 679 [“The parties need only have been given an opportunity to brief the issue
decided by the court, and the fact that a party does not address an issue, mode of analysis,
or authority that is raised or fairly included within the issues raised does not implicate the
protections of [Government Code] section 68081.”]; accord, Mark v. Spencer (2008) 166
Cal. App. 4th 219, 228, fn. 4; Plumas County Dept. of Child Support Services v. Rodriguez
(2008) 161 Cal. App. 4th 1021, 1029, fn. 1.)
87.
Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2015) § 8.7, p. 8-7 [“The
provision for attaching a copy of the initial study is not mandatory, and the authors
believe that inclusion of the initial study in the administrative record should be
sufficient.”].)
Here, City’s initial study concluded the Project may have a significant effect on
short-term visual character and historical resources. On the other hand, the initial study
found impacts on air quality, greenhouse gas emissions, parks, traffic, and utilities not to
be significant and presented extensive rationale for these determinations. (See ante, at
pp. 13-45.) Hence, the initial study narrowed the scope of the EIR to focus on the
Project’s effects on short-term visual character and historical resources. (See Guidelines,
§ 15006, subds. (d) & (p).) As previously mentioned, with regard to insignificant effects,
pertinent Guidelines and case law only require an EIR to succinctly discuss them. City
complied by incorporating germane parts of the initial study into the text of the EIR and,
for good measure, appending a copy of the study to the EIR. (See ante, p. 61.) It had no
legal obligation to analyze insignificant effects in the EIR in the manner urged by
Coalition.49
49 At oral argument, Coalition asserted the EIR failed to comply with CEQA because
the analyses of park and traffic impacts, inter alia, were not based on a proper baseline. It
is true “[a]n EIR must include a description of the physical environmental conditions”
“by which a lead agency determines whether an impact is significant.” (Guidelines,
§ 15125, subd (a).) As noted, however, an EIR need only analyze those impacts deemed
significant in the initial study. (See id., §§ 15006, subd. (d), 15128, 15143.) In the
instant case, impacts on parks and traffic were deemed insignificant in the initial study;
hence, they were not required to be analyzed in the EIR. City’s inclusion of the initial
study’s analyses on these matters in the EIR discharged its minimal obligation under
CEQA to “mention[] only briefly issues other than significant ones in EIRs.”
(Guidelines, § 15006, subd. (p); accord, id., § 15128.) Coalition essentially asks us to
disregard the Guidelines, which we refuse to do. (Sunset Sky Ranch Pilots Assn. v.
County of Sacramento, supra, 47 Cal.4th at p. 907, fn. 3 [Guidelines accorded great
weight except where they are clearly unauthorized or erroneous].)
88.
ii. With respect to its allegation the EIR did not sufficiently
compare Options 1 and 2, Coalition failed to exhaust
administrative remedies.
“An action or proceeding shall not be brought . . . unless the alleged grounds for
noncompliance with [CEQA] were presented to the public agency orally or in writing by
any person during the public comment period . . . or prior to the close of the public
hearing on the project before the issuance of the notice of determination.” (§ 21177,
subd. (a); see Tomlinson v. County of Alameda (2012) 54 Cal. 4th 281, 285, 288-289, 291-
292 [§ 21177, subd. (a), sets forth exhaustion-of-administrative-remedies requirement].)
The petitioner bears the burden of proving the issue was initially raised at the
administrative level. (Porterville Citizens for Responsible Hillside Development v. City
of Porterville (2007) 157 Cal. App. 4th 885, 909.)
City first asserted Coalition did not exhaust administrative remedies in its answer
to Coalition’s writ petition below. (See Save Our Residential Environment v. City of
West Hollywood (1992) 9 Cal. App. 4th 1745, 1750 [respondent or real party in interest in
CEQA action should raise exhaustion defense during writ proceeding in trial court].) On
appeal, City renews this defense. Coalition maintains City was fairly apprised of its
argument the EIR did not sufficiently compare Options 1 and 2 and directs us to certain
correspondence received during the public comment period.50 We reviewed these letters
and cannot contemplate how they suggest the EIR did not sufficiently make this
50 Coalition also states it “raised essentially the same issue in trial court briefs” dated
July 21, 2014. However, this occurred nearly five months after issuance of the notice of
determination. (See § 21177.)
89.
comparison.51 (See Banker’s Hill, Hillcrest, Park West Community Preservation Group
v. City of San Diego (2006) 139 Cal. App. 4th 249, 282 [“[W]e do not perceive . . .
unelaborated comment by a member of the public as fairly raising . . . [an] argument to
the [public agency]. ‘[O]bjections must be sufficiently specific so that the agency has the
opportunity to evaluate and respond to them.’ ”].)
“Exhaustion of administrative remedies is a jurisdictional prerequisite to
maintenance of a CEQA action” (Bakersfield Citizens for Local Control v. City of
Bakersfield (2004) 124 Cal. App. 4th 1184, 1199) and “failure to exhaust administrative
remedies is a bar to relief in a California court” (Sierra Club v. San Joaquin Local
Agency Formation Com. (1999) 21 Cal. 4th 489, 495).
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent City of Fresno.
_____________________
DETJEN, J.
WE CONCUR:
_____________________
HILL, P.J.
_____________________
GOMES, J.
51 The remarks upon which Coalition relies include the following:
“The initial study required under CEQA for the current analyses of [the]
Mall must address potential effects on the environment from each of the
three [options] eligible for study . . . .”
“The EIR must include the actual number of sculptures, other artwork,
water features, and trees, and Eckbo’s landscape design to be destroyed by
Options 1 and 2.”
“Under either option returning traffic to [the] Mall . . . , I would like to see
more of the existing trees preserved rather than replaced.”
90.