CITY OF LONG BEACH, et al., Respondents.
Court of Appeal, Second District, Division 5, California.
197 Cal.App.3d 241
Dec. 24, 1987.
Businessmen who owned interest along route chosen for rail transit project
challenged county transportation commission's certification of environmental
impact report as adequate. The Superior Court, Los Angeles County,
Charles L. Litwin, Retired, J., sitting by assignment, upheld certification
and businessmen appealed. The Court of Appeal, Nebron, J., sitting
by assignment, held that: (1) commission was not deprived of pertinent
environmental information by failure of city council to send staff memorandum
which supported different route; (2) project was not changed in manner
sufficient to require new environmental impact report; and (3) businessmen
were not prejudiced by trial court's refusal to permit discovery by way
of deposition of several commission officials.
C. Robert Ferguson, Pasadena, for petitioners and appellants.
Kadison, Pfaelzer, Woodard, Quinn & Rossi, McDermott, Will & Lee L. Blackman, John C. Funk, Los Angeles, John R. Calhoun, City Atty., and Heather A. Mahood, Deputy City Atty., Long Beach, for respondents.
NEBRON, Associate Justice.
Assigned by the Chairperson of the Judicial Council.
Petitioners appeal from a judgment on the superior court finding that the Los Angeles County Transportation Commission (LACTC) did not abuse its discretion in certifying as adequate an Environmental Impact Report (EIR) for the Los Angeles to Long Beach Rail Transit Project. LACTC would route the Project along Long Beach Boulevard in the City of Long Beach.
Petitioners are businessmen owning interests along Long Beach Boulevard. They assert that the chosen routing will adversely affect their businesses. Petitioners acknowledge that the EIR examined an exhaustive variety of environmental issues, but they challenge the documentation, the study process, the decision of LACTC, and the trial court's ruling.
We set forth the facts in considerable detail in order to make disposition of the numerous issues raised by petitioners easier to understand.
In November 1980 the voters of Los Angeles County approved "Proposition A," which authorized a one-half cent sales tax to fund construction and operation of rail transit systems to serve various transportation corridors in Los Angeles County. In 1982, LACTC formally designated the Long Beach to Los Angeles Rail Transit Project as the first of the 13 transit corridor systems to be undertaken in accordance with Proposition A.
In January 1983, the Long Beach Planning and Building Department prepared
a report regarding various alternative alignments of the Project within
the city. Several public hearings were held to discuss the alternative
alignments. Later, the Long Beach City Council recommended further
study of four alignments.
FN1 Public Resources Code section 21069.
FN3 Consideration of such factors is not required by CEQA (Pub. Resources Code, § 21081; State CEQA Guidelines, 14 Cal.Admin.Code, § 15091), but was provided to assist the decision makers in the policy judgment to be made. No findings were made as to these policy areas. Under CEQA, findings are required only for environmental issues.
Petitioners present a prolix attack on the sufficiency of the documentation
in this case, citing only those portions of the evidence favorable to their
contentions rather than making a presentation of all evidence which might
have had a bearing on the trial court's decision. This court, therefore,
has explored in detail the record before us in order to achieve a comprehensive
review of the case. (Cf. Topanga Ass'n for a Scenic Community
v. County of Los Angeles (1974) 11 Cal.3d 506, 514, 113 Cal.Rptr. 836,
522 P.2d 12.) A distillation of the many issues and sub-issues
reveals the following to be the crux of the appeal: (1) That LACTC
was deprived of pertinent environmental information by the failure of the
Long Beach City Council to send it a staff memorandum which had recommended
a different routing than that ultimately chosen by the Long Beach City
Council and the LACTC; (2) that the Project has been changed in a
way sufficient to require a new EIR; (3) that the EIR does not adequately
study the "realistic" benefits of the Project, its economic impacts, and
its effects on rush-hour traffic, and does not adopt "effective" mitigation
measures to avoid its adverse effects; (4) that the LACTC failed
to make required findings in support of the selected route; and (5)
that reversal of the trial court is required because that court refused
to permit discovery by way of deposition of several LACTC officials.
FN4 Petitioners assert that the initial and primary questions for this court to decide are whether to permit further discovery (see infra, at p. 771 for discussion of this issue) or whether to review respondents' procedures on a "de nova" (sic ) basis and declare the administrative process inadequate.Petitioners rely on Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 213 Cal.Rptr. 712, to support their position that they are entitled to a de novo hearing before the appellate court. In that case, plaintiff sued for injunctive relief and damages based on defendants' fraud in inducing him to enter into to a secured loan transaction. The action remained essentially dormant for over two and one-half years and defendants successfully moved to dismiss under Code of Civil Procedure section 583, subdivision (a). The appellate court reversed, holding that, in the absence of a showing of some prejudice by defendants, the sanction of dismissal was improper. The court held that a trial court is in no better position than an appellate court to resolve issues presented by a Code of Civil Procedure section 583, subdivision (a) motion and that a decision to dismiss is reviewable as a question of law. The facts and reasoning of that case are totally inapplicable to this case.
Second, some issues now raised by petitioners are improperly before
us as not being raised in the trial court.
FN5 For example, petitioners contend that nowhere in the Administrative Record is there a discussion of the impact of the proposed Long Beach routes on the Project as a whole. We have read the transcript of the trial proceedings. Assuming that issues were raised off the record, or otherwise, they could have been preserved by making a specific objection to the proposed findings of the trier of fact. Further, no request for a finding on this issue was contained in appellants' Request for Statement of Decision. Our review is limited to the sufficiency of the evidence to support the findings and the court is not required to search the record for errors. (Markley v. City Council (1982) 131 Cal.App.3d 656, 673, 182 Cal.Rptr. 659; Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 360, 173 Cal.Rptr. 390.)
Third, petitioners suggest, without citation to the record, that this
court undertake a broad search of the extensive administrative record to
seek out alleged error. At the appellate stage of these proceedings,
it is petitioners' burden to demonstrate in what particular respect LACTC
lacked substantial evidence to support its findings. This court need examine
the record only to the extent specific challenges to its sufficiency are
raised. "The rule is well established that a reviewing court must
presume that the record contains evidence to support every finding of fact,
and an appellant who contends that some particular finding is not supported
is required to set forth in his brief a summary of the material evidence
upon that issue. Unless this is done, the error assigned is deemed
to be waived. [Citation.] It is incumbent upon appellants to
state fully, with transcript references, the evidence which is claimed
to be insufficient to support the findings." (McCosker v. McCosker
(1954) 122 Cal.App.2d 498, 500, 265 P.2d 21.)
FN6 Petitioners contend that respondents have the burden of proof in these proceedings. They cite Morris v. Williams (1967) 67 Cal.2d 733, 760-761, 63 Cal.Rptr. 689, 433 P.2d 697 and California Medical Assn. v. Brian (1973) 30 Cal.App.3d 637, 650-651, 106 Cal.Rptr. 555, as authority for their position.In the Morris case, the Supreme Court inquired into the validity of certain amended regulations of the Health and Welfare Agency reducing benefits provided for under the California Medical Assistance Program. The trial court opinion indicated that the defendants failed to meet their burden under the Medi-Cal Program. The trial court was affirmed.
In California Medical Association, the trial court entered a judgment
declaring invalid certain Medi-Cal regulations promulgated by the State
Director of Health Care Services. The Appellate Court affirmed.
The trial court found that defendants had the burden of proof. Defendants
contended "this was error since the burden of proving their case rest with
plaintiffs (CMA and O'Reilly) throughout the case." The appellate
court agreed with the trial judge.
FN7 "In any action or proceeding, other than an action or proceeding under section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Pub.Resources Code, § 21168.5.)
Petitioners contend that because the staff recommendation and the opinion of the Long Beach Planning Department was not forwarded to LACTC their rights were substantially prejudiced.
The report of the Long Beach Department of Planning to the Long Beach
city council consisted of a policy recommendation by the city's planners
that the project should be aligned along the so-called "River Route" rather
than along Long Beach Boulevard.
FN8 The document states in part, as follows: "Staff believes that the two primary alternatives offer distinctly different types of transit service to Long Beach, and that the choice between them becomes primarily a policy question rather than a technical matter. This opinion is shared by the staff of LACTC, which concluded in their recent Alternative Evaluation--Long Beach report that 'selection of a project alignment in Long Beach must be based on policy choices, as it is not possible to adequately distinguish among at least two of the candidates on the basis of technical data and public comment alone.' "
FN9 "... the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record." (Pub.Resources Code, § 21168.)
"The availability of an adequate underground water supply for the proposed project and the availability of an alternate source of water by importation from other areas and its effect on the existing water users in the area is a matter of serious environmental concern. It is a matter of common knowledge that the existing limited underground water supply in most areas in California is threatened by increased residential development. Thus, the problem must be squarely faced by public agencies in deciding whether to approve a project." (Fn. omitted.) (People v. County of Kern, supra, p. 772-773, 133 Cal.Rptr. 389.)
In Cleary v. County of Stanislaus, supra, the court found that
the response to the comments by the Air Resources Board to a draft environmental
impact report concerning zoning changes was nonspecific and general, stating,
among other things, that it was not one of its concerns, and stating in
a conclusional form that "the increase in traffic generated by the proposed
use is insignificant." The Air Resources Board expressed specific
concern regarding the effect of additional emissions from development of
the site and increased automobile traffic. "... A conclusory statement,
'unsupported by empirical or experimental data, scientific authorities,
or explanatory information of any kind' not only fails to crystalize issues
[citation] but 'affords no basis for a comparison of the problems involved
with the proposed project and the difficulties involved in the alternatives.'
[Citation.]" (Cleary v. County of Stanislaus, supra, 118 Cal.App.3d
at p. 358, 173 Cal.Rptr. 390.)
FN11 In Silva v. Lynn (1st Cir.1973) 482 F.2d 1282, the district court considered only the final statement, the draft statement and comments filed thereto, certain affidavits and testimony taken in court. It refused appellants' request that the administrative record be produced. Yet that record contained more detailed studies and background of deliberation which formed the basis of the final environmental impact statement. The appellate court was of the opinion that Federal law required production to the lower court of the entire administrative record. Therefore, the court remanded to the district court with instructions that it return the final environmental impact statement to the Department of Housing and Urban Development, requesting it to supply more detailed reasons supporting its conclusions. "We would not contemplate that the district court, in the absence of special circumstances which we cannot now foresee, would have the need to take more evidence. But we do not attempt to prejudge. (See, e.g., Allison v. Froehlke (5th Cir.1972) 470 F.2d 1123.) Upon the presentation of an amended Final Statement, together with the administrative record to date, which we think is required, we would hope that the court could come to a fairly rapid conclusion as to the validity of the statement." (Silva v. Lynn, supra, at p. 1288.)
HAS THE PROJECT BEEN CHANGED IN A WAY SUFFICIENT TO REQUIRE A NEW EIR? NO.
Petitioners assert that respondents' EIR did not present a realistic
evaluation or detailed assessment of the service benefits or the traffic
impacts of the Project. They claim that the period for constructing
the rail system in Long Beach has "expanded" from a range of 20 to 30 months
(as estimated in the EIR) to four years. Petitioners claim that this
would result in an added threat to their businesses and require a new EIR
under Public Resources Code section 21166 and State CEQA Guidelines section
FN12 This document is a form letter dated May 21, 1985, to persons who had testified at the various public hearings conducted during preparation of the EIR for the entire Project. The letter, signed by Ms. Jacki Bacharach, Chairwoman of LACTC, contained the statement that "construction on the project is scheduled to begin this fall, and should take approximately four years."
FN13 Item 4 of the agenda presented a rough estimate of the total period of time from initiation of utility work to the conclusion of landscaping in the vicinity of tracks in Long Beach. Caulfied indicated that the first utility work could begin in December 1986, and that light rail service would commence in October 1989. However, actual obstructive construction on Long Beach Boulevard would occur between December 1986 and June 1988--a period within the 20 to 30 month range.
A. Ridership Estimates.
Petitioners challenge the accuracy of the ridership estimates contained in the EIR on the grounds that they are inconsistent with estimates of another agency. CEQA does not provide a forum for attacking the policy decision to proceed. Nor do disagreements among experts require the invalidation of an EIR. (State CEQA Guidelines, 14 Cal.Admin.Code, § 15151; San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 594, 122 Cal.Rptr. 100.)
B. Peak-Hour Traffic Impacts on Long Beach Boulevard.
Further, the SEIR indicated that some traffic impacts could occur at
intersections with left-turning traffic crossing the light rail transit
FN14 It should be noted that traffic mitigation measures are described, including the modification of traffic signal phases to accommodate possible left-turn conflicts with rail transit vehicles and the inclusion of other mitigation measures, as part of the city's "Transportation System Management (TSM)" program.
The trial court's ruling is supported by substantial evidence.
C. Economic Impacts.
CEQA does not require an analysis of social or economic impacts.
(State CEQA Guidelines, 14 Cal.Admin.Code, §§ 15131, 15131(a).)
Nevertheless, these impacts of construction and operation of the Project
were considered in-depth in the environmental documents. The documents
recognized that there would be a disruption of local businesses because
of the construction along Long Beach Boulevard. Economic impacts
were specifically set out in the SEIR. As a result of these considerations,
mitigation measures incorporated in the final Project include maintaining
access on Long Beach Boulevard during construction, keeping at least one
lane open in each direction at all times, keeping block closures to a minimum,
providing temporary signing, and maintaining pedestrian access to businesses.
DOES THE EIR ADOPT EFFECTIVE MITIGATION MEASURES TO AVOID ADVERSE EFFECTS? YES.
The principal purpose of an EIR is to inform decision makers of the
potential environmental impacts of a project. The EIR is required
to identify possible ways to minimize significant effects. Mitigation
measures are suggestions which may or may not be adopted by the decision
makers. There is no requirement in CEQA that mitigation measures
be adopted. The adoption of mitigations depends, among other matters,
upon economic and technological feasibility and practicality. (State
CEQA guidelines, 14 Cal.Admin.Code, § 15121.)
DID LACTC FAIL TO MAKE REQUIRED FINDINGS IN SUPPORT OF THE SELECTED ROUTE? NO.
The purpose of an EIR is to describe and analyze the environmental impacts of a particular project. If an EIR concludes that a project will result in significant environmental effects, CEQA requires that the public agency make findings as to each of the impacts. (Pub.Resources Code, § 21081; State CEQA Guidelines, 14 Cal.Admin.Code, § 15091.)
Findings are required only for environmental impacts; they are
not required for policy decisions. Further, once the required findings
as to environmental impacts have been made, a public agency may still adopt
a project with adverse environmental consequences, provided it either adopts
mitigation measures or finds that overriding considerations justify the
project notwithstanding unmitigated adverse consequences. (State
CEQA Guidelines, 14 Cal.Admin.Code, §§ 15092(b)(2)(B) and 15093.)
FN15 "We hold further that a reviewing court, before sustaining the grant of a variance, must scrutinize the record and determine whether substantial evidence supports the administrative agency's findings and whether these findings support the agency's decision. In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision.
"Among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. [Citations.] In addition, findings enable the reviewing court to trace and examine the agency's mode of analysis. [Citations.]
"Absent such roadsigns, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency. Moreover, properly constituted findings enable the parties to the agency proceeding to determine whether and on what basis they should seek review. [Citations.] They also serve a public relations function by helping to persuade the parties that administrative decision-making is careful, reason, and equitable." (Topanga Ass'n for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at pp. 514-517, 113 Cal.Rptr. 836, 522 P.2d 12.)
But this case is distinguishable from Topanga. In Topanga, "... the granting of a variance by the County of Los Angeles was invalidated on the ground that no findings were made showing the existence of circumstances authorizing a variance under the provisions of Government Code section 65906 permitting variances ' "only when, because of special circumstances applicable to the property, ... the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification." (Italics added.)' " (11 Cal.3d at p. 520, 113 Cal.Rptr. 836, 522 P.2d 12.) The court analyzed certain "factual data" in the planning commission's summary and noted (Id., at pp. 520-521, 113 Cal.Rptr. 836, 522 P.2d 12): "The data contained in the planning commission's report focus almost exclusively on the qualities of the property for which the variance was sought. In the absence of comparative information about surrounding properties, these data lack legal significance. Thus knowledge that the property has rugged features tells us nothing about whether the original real property in interest faced difficulties different from those confronted on neighboring land. Its assurances that it would landscape and terrace parts of the property and leave others in their natural state are all well and good, but they bear not at all on the critical issue whether a variance was necessary to bring the original real party in interest into substantial parity with other parties holding property interests in the zone. [Citations.]
"The holding in Topanga was, thus, that in the total absence of findings in any form on the issues supporting the existence of conditions justifying a variance, the granting of such variance could not be sustained." (Emphasis added.) (Jacobson v. County of Los Angeles (1977) 69 Cal.App.3d 374, 389, 137 Cal.Rptr. 909.)
In Resource Defense Fund plaintiffs sought a writ of mandate to compel
a county local agency formation commission to set aside its approval of
an annexation on the ground that CEQA had been violated. The trial
court held that the EIR was defective, but determined that the commission's
violation of the act was "harmless error." "... the conventional
'harmless error' standard has no application when an agency has failed
to proceed as required by CEQA. [Citation.] Failure to comply
with CEQA procedures is necessarily prejudicial." (191 Cal.App.3d
at p. 897-898, 236 Cal.Rptr. 794.) In the case at bench, however,
the trial court found no error. The policy considerations upon which
LACTC adopted the Long Beach Boulevard alternative were clearly enunciated
in the record.
WERE THE PETITIONERS WRONGFULLY PRECLUDED FROM COMPLETING DISCOVERY? NO.
Prior to trial, petitioners noticed depositions of numerous LACTC officials.
Respondents sought a protective order and the trial court determined that
depositions were inappropriate but permitted all other forms of discovery.
Nothing in the order suggested that if other discovery proved to be inadequate,
petitioners' request for depositions could not have been renewed.
We do not agree with petitioners' contention. They could have
mooted the issue by pursuing other forms of discovery.
FEINERMAN, P.J., and ASHBY, J., concur.