Union Pacific v. City of AmericanCanyon

Filed 12/22/09 Union Pacific v. City of American Canyon CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In this case we again consider claims that the City of American Canyon (City) failed to comply with the provisions of the California Environmental Quality Act (CEQA)[1] in approving a commercial development located near the intersection of Highway 29 and Napa Junction Road in American Canyon. In American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062, 10661067 (American Canyon), addressing the Citys approval of Phase I and Phase II of the Napa Junction project, we held that the Citys determination that supplemental environmental review was not required following the addition of a Wal-Mart supercenter to Phase II was not supported by substantial evidence. (Id. at p. 1083.)

Here we consider the challenge of Union Pacific Railroad (Union Pacific), an adjacent property owner, to the decision of the City to approve Phase III of the Napa Junction project without first requiring an environmental impact report (EIR). The trial court found that Union Pacific had standing to bring the petition, and granted Union Pacifics petition in part, issuing a writ of mandate requiring the City to set aside its approvals of Phase III, but not requiring preparation of an EIR. The trial court based its decision on what it termed flawed traffic studies used by the City in issuing permits based on a mitigated negative declaration (MND) of environmental impact, relying in part on our holding in AmericanCanyon. We likewise reject many of the contentions raised by Union Pacific, but we first agree that it has standing to pursue these claims. We also find that substantial evidence supports a fair argument that Phase III would have significant unmitigated effects on the environment, and that as a consequence an EIR is required. We therefore order modification of the writ to require the City to prepare one.

I. Background

The Napa Junction project is a mixed commercial and residential development. Phase I and Phase II are located on a 40-acre site in the southeast corner of the intersection of Highway 29 (which runs north-south) and Napa Junction Road (which runs east-west) in American Canyon. (American Canyon, supra, 145 Cal.App.4th at pp. 10661067.) Phase I (development of the southern half of the Phase I/II site) consisted of retail space, a hotel, and multifamily housing. Phase II, on the northern half of the site, consisted entirely of retail space. (Id. at p. 1067.) The developer (Lake Street Ventures and its successor in interest Napa Junction I, LLC) applied for project approval in July 2003. The City issued an MND[2] for Phase I and Phase II in October 2003, and the City adopted the Phase I/II MND and approved that project in December 2003. (Id. at p. 1067 & fn. 1.)

In July and August 2004, Wal-Mart applied for a design permit and sign program for the proposed construction of a Wal-Mart supercenter in the Phase II site that would operate seven days a week, 24 hours a day. (American Canyon, supra, 145 Cal.App.4th at p. 1068.) The City determined that further CEQA review was unnecessary and approved the application. (Id. at pp. 10681069.) Opponents of the Wal-Mart project filed an unsuccessful CEQA action in superior court. On November 17, 2006, we reversed. (Id. at pp. 1069, 1084.) We held that the Citys determination that the supercenter proposal would not have significant new or substantially increased environmental effects was not supported by substantial evidence in the record, and we remanded for reconsideration of whether supplemental environmental review under section 21166[3] was required.[4] (Id. at p. 1083.)

Meanwhile, on June 14, 2005, Lake Street Ventures (Developer)[5] applied for a general plan amendment, parcel map, zoning ordinance amendment, and design permit for Napa Junction Phase III (Phase III). As described in an August 2006 City planning commission staff report, Phase III would be located on a 17‑acre site directly north of the Napa Junction Phase II site, in the northeast corner of Highway 29 and Napa Junction Road. Phase III would include: 131,300 square feet of commercial retail development, consisting of four large retail buildings linked by seven small shops along in the north and northeast area of the site; a midsize retail building on the Highway 29 side near Napa Junction Road; and three midsize retail buildings along Napa Junction Road. An access road (Main Street) would enter the site from Napa Junction Road midway along the southern boundary, linking the site to the Phase I/II project sites.

A traffic study for Phase III was prepared on July 24, 2006. The study concluded that Phase III would contribute to cumulative adverse traffic effects on Highway 29, but that the impacts could be mitigated through three proposed mitigation measures. On about August 4, 2006, the City provided a notice of its intent to adopt an MND for Phase III in lieu of requiring an EIR and provided for a public review and comment period through August 24, 2006, when the matter would be heard by the Planning Commission.

Appellant Union Pacific owns undeveloped property to the north of the Phase III site and a relatively narrow strip of property to the east of the site. On August 22, 2006, Union Pacific submitted a comment letter on Phase III: [Union Pacific] generally supports well planned retail development in this portion of American Canyon. [] However, as the immediately adjacent landowner, Union Pacific has repeatedly expressed concerns that a site plan similar to that proposed by the applicant forever cuts off an integrated and comprehensively planned approach to these remaining industrial properties visible from Highway 29. Union Pacific noted that it had a pending application for parcel merger and lot line adjustment that would take a number of historic, oddly shaped and often smaller parcels and result in only three parcels, including a 15.1 acre parcel with frontage on Napa Junction Road[, which] will be immediately contiguous with the northern and eastern boundaries of the [Phase III] site . . . . It stated there has been significant market interest from retail and hotel users in the Union Pacific Site. However, the northern retail strip in the proposed Phase III development would stretch across most of the border between Phase III and the Union Pacific property to its north, with the rear of the Phase III retail facing the Union Pacific property. Unfortunately, despite our requests that the applicant preserve the Citys planning and circulation options for the Union Pacific site, the plans before the Commission have continued to completely ignore the Union Pacific site. In fact, this blind eye approach . . . has resulted in a CEQA document which treats our clients site as if it doesnt exist. As a result, we are compelled to point out the many circulation, noise, land use, visual and other impacts which have been neglected by this proposed MND.

In an August 24, 2006 letter, the California Department of Transportation (Caltrans) also commented extensively on the Phase III traffic study and the MND (including its proposed Mitigation Monitoring and Reporting ProgramMMRP), questioning their conclusions and the adequacy of the proposed mitigation measures. The letter noted that Caltrans had written a similar letter in September 2005, commenting on an earlier version of the Phase III traffic study (which is not in the appellate record), and that many of the concerns discussed in that letter remained unaddressed.

The City planning staff recommended that the Planning Commission adopt the MND and approve Phase III. The staff report did not respond to the comments of Union Pacific or Caltrans.

A Caltrans representative appeared at the August 24, 2006 Planning Commission hearing and spoke in opposition to approval of Phase III, questioning the adequacy and certainty of the proposed traffic mitigation measures, and opining that the environmental document was inadequate regarding traffic. The Citys public works director and counsel responded to Caltranss concerns during the hearing.[6]

A Union Pacific representative also appeared at the Planning Commission hearing. The representative said, We really like what [Developer has] been able to do here. Its [an] exciting addition to the city in terms of Phase On[e] and Two, and were in no way [unintelligible] try and change the momentum that theyve been building to get this project going, but . . . we think theres some real opportunities to enhance the development of Phase Three, and . . . what were really looking for here is . . . just a little bit more time for us to be able to make our contribution. He said he had been meeting in the last 60 days with retail and hospitality developers about the Union Pacific site and to a person they all made the comment . . . [to] make sure the circulation works and make sure the linkages are there . . . to really get . . . the value by adding complimentary retail. . . . [W]e may have an opportunity to bring another million plus . . . in tax dollars into the city. He asked for a 60‑day postponement, apparently to pursue these opportunities and propose ways to allow for compatible development on the two sites. Tim Wilkins (Wilkins), whose affiliation is not identified in the record, told the commission we have been in negotiations . . . with Union Pacific to buy the property . . . [and] put in hotels . . . .

A representative of Developer said the Union Pacific property had been up for sale for 10 years and Developer had been trying to acquire the property for five years. After numerous discussions with Union Pacific brokers, hundreds of email messages, investments in an environmental survey and a site plan analysis, Developer still had not received a response from Union Pacific. In about November 2005, Developer showed Union Pacific a site plan for Phase III asking for its input and again offered to purchase Union Pacifics property without success.

The Planning Commission voted to recommend that the City Council adopt the MND and approve Phase III.

At the September 19, 2006 City Council meeting, Union Pacific presented a conceptual design for development of both the Phase III site and the Union Pacific property. The reason I hand [the conceptual design] out is just to show how we think a design could be cohesively planned to allow the Union Pacific site to integrate with the retail site. We think whatever goes on the UP site, there ought to be connectivity. Union Pacific and Wilkins had signed a letter of intent to develop a hotel on the Union Pacific property. Union Pacific asked the council for a 30- to 60-day postponement to allow Union Pacifics lot line adjustment application to be approved and to allow the property sale to go through.

Developer told the Council it had met with Union Pacific six days after the Planning Commission hearing and had heard nothing from the company since. Developer opined that the Union Pacific portion of the conceptual plan was not commercially viable. After reiterating that it had made multiple efforts to coordinate its planning with Union Pacific over a five-year period without success, Developer asked the City Council not to delay Phase III approval any longer.

The City Council adopted the MND with a modification and approved Phase III by passing a resolution that amended the General Plan and the zoning ordinance. It filed a notice of determination on September 21, 2006.

Subsequently, City staff realized that the zoning ordinance had erroneously been amended by resolution rather than by ordinance. A proposal to formally amend the zoning ordinance was placed on the agenda for the November 28, 2006 City Council meeting for a first reading and the December 7, 2006 City Council meeting for a second reading.

During the pendency of the Phase III applications, we filed our decision in American Canyon, which reversed the Citys decision not to conduct a supplemental environmental review of the Phase I and II Napa Junction development because the City failed to take into account the increased size and changed nature of the Phase II retail component caused by the addition of a Wal-Mart supercenter. (American Canyon, supra, 145 Cal.App.4th at 1083.) We specifically determined that the Citys traffic analysis of the Phase I and II development was flawed because the City unreasonably minimized the increase in the size of the retail component with the supercenter. (Id. at p. 1066.) We also alerted the City to the danger of conducting impermissible piecemeal review of the project on remand by failing to consider the future development of one part of the Phase II site. (Id. at p. 1084.)

In a November 28, 2006 letter to the City Council, Union Pacific argued that the City had impermissibly segmented environmental review of the Napa Junction project by reviewing Phases I and II in one document and Phase III in a separate document.

In a report for the City Council meeting at which the second reading was scheduled (which had been continued to December 21, 2006), City planning staff recommended that the City Council delay approving the ordinance and order a further study of Phase IIIs cumulative traffic impacts in light of our decision in American Canyon. Noting that the July 24, 2006 traffic study assumed traffic volumes from Phase I and Phase II as Existing Conditions in its analysis, Interim Planning Director Sandra Cleisz observed: Given the potential that inaccurate assumptions for Napa Junction Phase II were integrated into the traffic analysis for the Napa Junction Phase III project, the environmental document (specifically the traffic study) could now be questioned as to its adequacy. . . . [] Staff recommends that the Council direct the project applicant to retain a traffic consultant to prepare an amended traffic study that examines both existing and cumulative conditions based on Napa Junction Phase II as originally approved (196,000 square feet of retail commercial) and also with the addition of a Supercenter on the site instead of all retail commercial. We also recommend that our new traffic engineer, Omni-Means, peer review the study for adequacy. [] After completion of a new traffic study, the Interim Planning Director will make a determination on the level of environmental review appropriate for this project, given all the facts.

At the December 21, 2006 meeting, the City Council approved the zoning ordinance amendment. There was no discussion on the record about the staff recommendation to continue the matter for further evaluation of traffic issues.

Trial Court Litigation

On October 20, 2006, Union Pacific filed a petition for a writ of mandate in the Superior Court, arguing the City and the City Council (hereafter jointly, City) violated CEQA by failing to prepare an EIR and by failing to submit the MND to the State Clearinghouse and provide the statutorily-required public review period. The parties repeatedly stipulated to, and the court ordered, stays of the trial court proceedings through August 31, 2007, to allow time for settlement negotiations. In the fall of 2007, the parties stipulated to, and the court imposed, a briefing and hearing schedule.

In its opening trial court brief, Union Pacific argued (as relevant here) the MND was flawed because: it failed to address the land use, planning, traffic circulation, and noise impacts of Phase III on the Union Pacific property; failed to respond to Caltranss concerns about the traffic study; failed to adequately mitigate Phase IIIs traffic impacts on Highway 29; failed to ensure adequate mitigation of Phase IIIs water impacts; engaged in improper piecemeal review of the three phases of the Napa Junction project; and failed to submit the MND to the State Clearinghouse for review and to provide the required extended public review period. The City contested these issues and further contended that Union Pacific lacked standing to raise the CEQA arguments.

On June 2, 2008, the court granted the petition in part. The court found that Union Pacific had standing, and vacated the Citys adoption of the MND on the ground that the traffic study was inadequate because it relied on a traffic study for Napa Junction Phases I and II that we deemed flawed in AmericanCanyon, supra, 145 Cal.App.4th 1062, an issue Union Pacific had raised in its reply brief. The court rejected Union Pacifics remaining arguments. Union Pacific appeals on the denied issues.

II. Discussion

A. Standard of Review

In reviewing an agencys 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. (Pub. Resources Code,  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 Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova(2007) 40 Cal.4th 412, 426427, fns. omitted (Vineyard).)

When an agency has failed to proceed as required by law, prejudice is determined by whether the environmental document fulfilled its information disclosure function, not by whether the agencys decision to approve the project would have been different. Noncompliance with substantive requirements of CEQA or noncompliance with information disclosure provisions which precludes relevant information from being presented to the public agency . . . may constitute prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would have resulted if the public agency had complied with those provisions. ( 21005, subd. (a).) In other words, when an agency fails to proceed as required by CEQA, harmless error analysis is inapplicable. (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946.)

The appellate court reviews the agencys action, not the trial courts decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] (Vineyard, supra, 40 Cal.4th at p. 427.)

B. Standing

City argues that Union Pacific lacks standing to challenge the Phase III approval on CEQA grounds because Union Pacific is motivated by its economic interests and not by a desire to protect the environment. The trial court concluded that Union Pacific had standing despite its economic interests because it owned land directly adjacent to Phase III. We agree.

As a preliminary matter, Union Pacific argues the City forfeited this argument by failing to appeal the trial courts ruling on standing. However, [s]tanding is a jurisdictional issue that may be raised at any time in the proceedings (Waste Managementof Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232 (Waste Management)), including by a respondent on appeal (see McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 90; Horn v. County of Ventura (1979) 24 Cal.3d 605, 611, 619). Union Pacific cites Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection to support its contention that [b]y failing to appeal the trial courts decision on standing, the City is bound by the trial courts findings. (Environmental ProtectionInformationCenter v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 480481 (EPIC).) In EPIC, however, the party that raised the standing issue (Pacific Lumber) had appealed the trial court decision. (Id. at p. 478479.) In affirming the trial courts ruling on standing, the Supreme Court simply noted that Pacific Lumber had not contested the trial courts factualfindings on the standing issue and concluded these findings were supported by substantial evidence. (Id. at p. 480481.) The Court made no forfeiture ruling.

We affirm the trial court on the merits of the standing issue. A mandamus action may only be brought by a person beneficially interested in the subject matter of the action. (Code Civ. Proc.,  1086; Waste Management, supra, 79 Cal.App.4th at p. 1232.) A plaintiff is beneficially interested in the action if (1) the plaintiff will obtain a direct, substantial benefit from issuance of the writ or suffer some detriment from its denial, over and above the publics benefit or detriment, and (2) the interest the plaintiff seeks to advance is within the zone of interests to be protected or regulated by the legal duty asserted in the action. (Waste Management, at pp. 12331234.)

It is true that CEQA is not a fair competition statutory scheme. . . . [] Thus, [a plaintiffs] commercial and competitive interests are not within the zone of interests CEQA was intended to preserve or protect and cannot serve as a beneficial interest for purposes of the standing requirement. (Waste Management, supra, 79 Cal.App.4th at p. 1235.) On the other hand, real or threatened environmental effects on a plaintiffs property by a proposed project obviously can establish a beneficial interest in a CEQA action. (Id. at p. 1236.) If a plaintiff has a beneficial interest in a CEQA action, the fact that the plaintiff also has interests that are not within the zone of interests protected by CEQA (such as a competitive or economic interest) does not strip the plaintiff of standing. (See Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1138; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1196, 1198.)

Here, Union Pacifics property is immediately adjacent to the Napa Junction project site and Union Pacific plausibly alleges that Phase III would generate traffic, water supply, land use planning, and noise effects that would impact its property to a greater extent than the impact on the public in general. In contrast, Waste Management involved a landfill operator (Waste Management) that challenged a countys approval of a permit for a competing landfill operator without requiring CEQA review. (Waste Management, supra, 79 Cal.App.4th at pp. 12291231.) Although the county required no environmental review before the permit approval, another agency had required Waste Management to conduct an environmental review before it obtained a similar permit. (Id. at p. 1231.) Waste Management argued the unequal treatment would create an unlevel playing field. (Ibid.) The court of appeal held that Waste Managements commercial and competitive interests did not establish its standing to bring a CEQA action, and that Waste Management had not established an environmental interest that would establish standing: not only were the two landfills four miles apart, but they lay on opposite sides of a natural geological divide. (Id. at pp. 12351236.) Similarly, in Regency Outdoor Advertising, Inc. v. City of West Hollywood the court held that a billboard company lacked standing to challenge a citys approval of an ordinance regulating wall signs because it was motivated by its commercial or competitive interests and had cited no environmental injury, if any, to its property or itself greater than what the public might suffer from the ordinance. (Regency Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153 Cal.App.4th 825, 829830.)

It does not require a particularly cynical view to observe that Union Pacifics desire to advance its economic interests in preserving the development potential of its own property, and to delay Phase III for that purpose, is self-evident from the administrative record below. It matters not, however, whether Union Pacific brings this action based on selfish interest or if it were motivated by concern for the public welfare. Union Pacific alleges real or threatened environmental effects on its property by the proposed Phase III project. (Waste Management,supra, 79 Cal.App.4th at p. 1236.) Union Pacific need not first establish the ultimate merit of its arguments in order to establish standing to assert the claims.

C. Failure to Submit the MND to the State Clearinghouse

Union Pacific argues the City failed to proceed in the manner required by law because it failed to submit the MND to the State Clearinghouse and failed to provide the extended public review period provided by that process. (Guidelines,  15073, subds. (a), (c), (d).) It argues here that the MND needed to be submitted to the State Clearinghouse because Caltrans was a responsible agency within the meaning of Guidelines section 15073, subdivision (d).[7] The argument Union Pacific now raises is waived because it was not a theory pursued in the trial court and, in any event, it lacks merit.

In the trial court, Union Pacific litigated the State Clearinghouse issue on the ground that the MND needed to be submitted because the project was of statewide, regional, or areawide environmental significance, not because Caltrans was a responsible agency as they now argue. Although Union Pacific did raise the responsible agency issue in its trial court petition, Union Pacifics opening trial court brief presented only the argument that statewide, regional or areawide [environmental significance] required submission to the State Clearinghouse. In opposition, the City stated, There is no dispute that there are no state agencies that are a responsible . . . agency, and Union Pacific did not argue otherwise in its reply brief below. Thus, Union Pacific abandoned its responsible agency argument in the trial court and cannot renew it here.

The argument also lacks merit.[8] To be a responsible agency,[9] an agency must have some discretionary authority for carrying out or approving a project. (RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1201, 1205; Lexington Hills Assn. v. State of California (1988) 200 Cal.App.3d 415, 430, 435 (Lexington Hills); Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 174 (Citizens Association).) The agencys power to approve need not have extended to every aspect of the project, but it must have extended to an  activity integral to the project and not just to an imposed mitigation measure. (Lexington Hills, at pp. 431, 433.) In Citizens Association, for example, Caltrans had discretionary authority over a shopping center project because the center was adjacent to and would encroach on a state highway. (Citizens Association, at p. 174.) Therefore, the countys negative declaration for the project had to be submitted to the State Clearinghouse pursuant to Guidelines section 15073. (Ibid.) In Lexington Hills, however, Caltrans approval was required only to carry out certain mitigations for the project (placing flagmen and signs on the highways to warn drivers about entering or exiting log-hauling vehicles). (Lexington Hills, at pp. 430433.) None of the activities integral to the project (e.g., its use of the highway) required Caltranss discretionary approval; therefore, the court concluded Caltrans was not responsible for carrying out or approving the project within the meaning of CEQA. (Ibid.)

Here, Union Pacific argues only that certain mitigation measures (i.e., highway improvements) require encroachment permits from Caltrans. Phase III itself does not encroach on a highway or otherwise require Caltrans approval. Therefore, Caltrans was not a responsible agency with the meaning of Guidelines section 15073.[10]

D. Piecemeal Review

Union Pacific also argues the City improperly segmented its environmental review of the Napa Junction project by separately reviewing Phases I and II (the subject of the prior appeal) and Phase III, the subject of this appeal. The City contends the issue is moot because the Citys approvals for Phases I and II are no longer subject to legal challenge. The City also argues the issue lacks merit. We agree that this issue is moot and thus reject the claim, particularly in the circumstances presented here, where Union Pacific did not participate in the prior litigation, and the Citys approvals for Phases I and II are no longer subject to legal challenge.[11]

CEQA mandates that environmental considerations do not become submerged by chopping a large project into many little oneseach with a minimal potential impact on the environmentwhich cumulatively may have disastrous consequences. (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283284.) In part, CEQA avoids such a result by defining the term project broadly. ([Guidelines,]  15002, subd. (d).)  Project means the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately . . . . [Citation.] (Citizens Association, supra, 172 Cal.App.3d at p. 165.) Courts have repeatedly set aside mitigated negative declarations that were based on an improperly narrow project description resulting in segmented review. (See, e.g., Citizens Association, at pp. 165168; Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 185, 195; Tuolomne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 12221231.)

The City argues Union Pacifics argument in this respect is moot because the Citys approvals of Phases I and II are final and no longer subject to legal challenge. Whether considered as a matter of jurisdiction or one of mootness, we agree it is no longer possible to require all three phases of the Napa Junction project to be analyzed in a single environmental document and Union Pacifics argument would fail on that basis alone.

It is undisputed that the Citys approvals of Phases I and II have become final and are no longer subject to legal challenge. More importantly, they are not being challenged in this appeal. Therefore, we would have no jurisdiction to order the City to set aside its approvals and conduct a new environmental review encompassing all three phases of the development. (See Waste Management, supra, 79 Cal.App.4th at p. 1235, fn. 4 [[w]ith respect to the decision requiring Waste Management to undergo CEQA review, Waste Managements remedy was to seek judicial review of that decision].)

Union Pacific cites Arviv Enterprises, Inc. v. South Valley Area Planning Commission to support its argument that this court can still order the City to conduct environmental review of all three phases of the development even though the first two phases of the development have been built. (Arviv Enterprises, Inc. v. SouthValley Area Planning Com. (2002) 101 Cal.App.4th 1333, 13471348 (Arviv).) However, Arviv is distinguishable because the City rather than a court belatedly ordered the unified environmental review, and at the time the City still exercised some authority over the development.

In Arviv, the developer initially submitted an application to build only three houses. The city planning department approved an environmental clearance and issued the developer a building permit. The environmental clearance was preliminary only, subject to review by the city agency having final say over the project application. The developer immediately filed a second application to build two additional houses. The city planning department again issued a building permit without requiring environmental review. When these five houses were mostly built, the developer filed an application to build two more houses and quickly filed another application to build 14 additional houses. All 21 houses were in the same general vicinity. After neighbors complained, the court of appeal rejected the developers argument that the belated environmental impact report requirement for the whole development impinged on his vested rights. The city had not issued building permits for the later two‑house or 14‑house applications, and the permits issued for the first five houses had not been issued in compliance with then-existing applicable law. As noted, the developer had been warned that the environmental clearances on the first two applications were preliminary only and subject to additional review. (Arviv, supra, 101 Cal.App.4th at pp. 13361338, 13491351, and fn. 27.)

Critically, for the purpose of our analysis in this appeal, as to none of the four applications had there been a notice of determination pursuant to CEQA that had become final once the time to legally challenge the notice had expired. (See  21167.) Here, the City issued a MND and notice of determination on Phases I and II and, insofar as the appellate record in this case demonstrates, those approvals have become final. As we have already observed, no legal challenges to those actions are pending before us in this appeal. Even if we agreed that a single environmental review of Phases I, II, and III were required under CEQA, we would have no power to order such a review in this appeal.

Moreover, as discussed post, it does appear from the record that the actual or potential environmental impacts from Phase I and Phase II were considered in assessing cumulative and incremental impacts of Phase III.

E. Failure to Prepare an Environmental Impact Report

Union Pacific argues the City should have ordered an EIR because substantial evidence in the record supports a fair argument that Phase III may have a significant unmitigated impact on the environment. We agree that an EIR is required.

1. Standard of Review

 CEQA requires a governmental agency [to] prepare an environmental impact report (EIR) whenever it considers approval of a proposed project that may have a significant effect on the environment. ( 21100, italics added.) In addition to the intent to require governmental decisionmakers to consider the environmental implications of their decisions, the Legislature in enacting CEQA also intended to provide certain substantive measures for protection of the environment. . . .[] If there is no substantial evidence a project may have a significant effect on the environment or the initial study identifies potential significant effects, but provides for mitigation revisions which make such effects insignificant, a public agency must adopt a negative declaration to such effect and, as a result, no EIR is required. ( 21080, subd. (c), 21064.) However, the Supreme Court has recognized that CEQA requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact. [Citations.] Thus, if substantial evidence in the record supports a fair argument significant impacts or effects may occur, an EIR is required and a negative declaration cannot be certified. ([Quail Botanical Gardens Foundation, Inc. v. City of Encinitas(1994)] 29 Cal.App.4th [1597,] 16011602.) [] When a challenge is brought to an agencys determination an EIR is not required, the reviewing courts function is to determine whether substantial evidence supported the agencys conclusion as to whether the prescribed fair argument could be made.  ([Id]. at p. 1602, fn. omitted.) The fair argument test is derived from Public Resources Code section 21151. (Stanislaus Audobon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150151 (Stanislaus Audobon).)

 The fair argument standard is a low threshold test for requiring the preparation of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agencys determination. Review is de novo, with a preference for resolving doubts in favor of environmental review. [Citation.] (Citizens for Responsible & Open Government v. City ofGrand Terrace (2008)160 Cal.App.4th 1323, 1331.)

We independently review the record and determine whether there is substantial evidence in support of a fair argument [the proposed project] may have a significant environmental impact, while giving [the lead agency] the benefit of a doubt on any legitimate, disputed issues of credibility. [Citations.] An agencys decision not to require an EIR can be upheld only when there is no credible evidence to the contrary. [Citation.] [] . . . [] . . . [S]ubstantial evidence is simply evidence which is of  ponderable legal significance . . . reasonable in nature, credible, and of solid value.  [Citation.] CEQA Guidelines . . . state that  Substantial evidence  is enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. ([Guidelines],  15384, subd. (a).) (Stanislaus Audobon, supra, 33 Cal.App.4th at pp. 151152, only citation omissions added.)

2. Cumulative Impacts

As discussed above, Union Pacific argues that the MND was inadequate because it failed to consider the cumulative impacts of all three phases of the Napa Junction development when it determined that Phase III would have no significant effect on the environment. We conclude the argument is procedurally barred because it was raised only perfunctorily in the administrative proceedings and in the trial court, and that the argument in any event lacks merit.

Section 21083 provides that a project may have a significant effect on the environment  (thus requiring preparation of an environmental impact report) if [t]he possible effects of a project are individually limited but cumulatively considerable. As used in this paragraph, cumulatively considerable means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. ( 21083, subd. (b)(2); Guidelines,  15064, subd. (h)(1).)

In its November 28, 2006 letter to the City, Union Pacific raised a piecemeal review argument (that Phases II and III of the Napa Junction Mixed-Use Development should be analyzed as a single project) and stated, Failure to do so will result in a legally inadequate analysis of the environmental impacts of these two phases of development. In its opening brief in the trial court, Union Pacific renewed its piecemeal review argument and stated that [t]his intentional project splitting also improperly bypasses the proper cumulative impacts analysis. In neither the administrative proceedings nor the trial court did Union Pacific make any specific challenge to the MNDs analyses of Phase IIIs numerous environmental impacts on the ground the analyses failed to take into account the cumulative effects of all three phases. On appeal, the cumulative impacts argument is almost as perfunctory. The argument is forfeited. (See California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 617619 [comments during administrative proceeding did not fairly apprise agency of alleged defects in the environmental document]; cf. Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784785 [unsupported argument deemed forfeited].)

In fact, the MND and its supporting documentation do consider the cumulative impacts of all phases of the Napa Junction project. The Phase III traffic study expressly assume[d] the completion of the Napa Junction Mixed Use Projects Phase I and II development in its analysis of existing and cumulative conditions. The cumulative scenario also assumed the completion of the Citys General Plan. The MND expressly considered the cumulative impacts of all three phases (and in some cases all projected future growth) on construction-related noise, population growth, fire protection services, traffic, air pollution (derived in part from the traffic analysis), and water supply. Union Pacific contends the MNDs cumulative impact analyses are conclusory, but our review indicates otherwise. Moreover, except as set forth post in our discussion of particular environmental impacts, Union Pacific cites no substantial evidence in the record that the impacts of Phases I, II, and III were cumulatively considerable. Therefore, it has not satisfied its burden on appeal with respect to this issue. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 899 (Porterville) [petitioners burden to demonstrate by citation to record the existence of substantial evidence supporting a fair argument of significant environmental impact].)

3. Water Impacts

Union Pacific argues the MND fails to ensure adequate mitigation of the Phase IIIs water supply impacts. Rather than citing substantial evidence that would support a fair argument that Phase III will have significant unmitigated impacts, Union Pacific relies on an alleged lack of substantial evidence supporting the MND. We reject this claim.

The MND states: According to the [American Canyon Urban Water] Management Plan (City of American Canyon 2006) the City has ample water supply for normal year conditions with current demand as well as for that which is projected out to 2025. However, shortfalls would occur under single dry years as well as multiple dry years (City of American Canyon 2006). [] The Management Plan identifies water supply projects that may accommodate projected shortfalls. . . . [] The Phase III project would need approximately 26,000 gallons per day, or 28.7 AFY^[[12]] (Michael Stoner, personal communication). Additional water supplies or conservation measures would be necessary to accommodate this demand in dry years. This significant impact would be reduced to a less-than-significant level with implementation of the following mitigation measures. The MND then lists six specific mitigation measures, most of which require an extensive use of recycled water in Phase III. The City planning staffs report on Phase III concurred: If the project extends the recycling main pipe and uses recycled water for irrigation, as well as plumbing all fixtures for low-water use, impacts are expected to be less than significant.

At the September 2006 City Council meeting, the mayor asked whether there was a sufficient water supply for Phase III, noting that [a]t present we have a 24% shortfall in a single dry year scenario. An unidentified male speaker, apparently a City staff member, responded as follows: [T]his project was deemed complete before the urban water [management] plan was prepared. . . . [W]ere taking an approach . . . different than what weve done with projects that have come in since the urban water management plan was approved by the council. . . . [W]ere not requiring them to fully mitigate the increased water demand, but we came up with a series of mitigation measures, which call for using recycled water to the maximum extent practical, including using recycled water for toilet fixtures, and actually with a commercial project like this, that pretty much covers all the water. . . . The Napa Junction mixed [use] projects I and II[] put in a recycled water pipeline in their project, and this project is conditioned to extend that pipeline. So . . . I think were well positioned to serve it and really minimize any potable water use. [] . . . [I]ts my opinion that . . . this is really not any new demand that we havent already accounted for. So I feel that it is covered and that we can adequately serve this project.

This record supports the MNDs finding that Phase IIIs water impacts would be mitigated to less-than-significant levels by the proposed mitigation measures. The MND, which was prepared by professional environmental consultants, states that the projects acknowledged significant impact on water supplies would be reduced to a less-than-significant level with implementation of the following mitigation measures that were imposed on Phase III. The City official at the hearing stated that the mitigation measures requiring recycled water infrastructure and use would pretty much cover[] all the water used by Phase III. Both the MND and the speaker at the hearing referred to the Citys Urban Water Management Plan, which supports an inference their comments were informed by a thorough study and evaluation of the Citys water supplies and demands.[13] That is, insofar as the record discloses, these staff opinions had a foundation in facts and expertise and provided a sound basis for the conclusion that Phase IIIs water impacts would be mitigated to less-than-significant levels. An agency may rely on the expertise of its planning staff in determining whether a project will not have a significant impact on the environment. [Citation.] (Porterville, supra, 157 Cal.App.4th at p. 907.) As noted earlier, it may also rely on the opinions of outside experts. (See Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928 (Pocket Protectors).)

Union Pacific does not cite any evidence in the record that Phase III would have a significant unmitigated impact on the Citys water supplies. At oral argument, Union Pacifics counsel conceded it could not do so, and explained it was challenging the MNDs water analysis solely on the ground that the analysis lacked evidentiary support. A lack of evidence in a mitigated negative declaration, standing alone, does not give rise to a fair argument that the Project will in fact have significant cumulative effects. [Citation.] [Rather], it [will only] enlarge the scope of the fair argument which may be made based on the limited facts in the record. [Citation.] (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1382 (Gentry) [quoting Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311].) Because Union Pacific has not cited any facts in the record supporting a fair argument that Phase III will have a significant unmitigated water impact, its critiques of the MNDs evidentiary foundation are irrelevant.

We further note that Union Pacifics critiques appear unwarranted. Union Pacific observes that the speaker at the hearing conceded Phase IIIs water impacts would not be fully mitigated. CEQA, however, does not require full mitigation before an agency can rely on an MND; it requires mitigation to less-than-significant levels ( 21100, subd. (a)), and the MND and City official opined that the imposed mitigation measures would accomplish that goal. Union Pacific also faults the MND for not quantifying the water impacts of Phase III and the water savings of the mitigations to justify its conclusion that any nonmitigated impacts would be less than significant. However, the cases Union Pacific cites on this issue involve environmental impact reports rather than mitigated negative declarations. (See Vineyard, supra, 40 Cal.4th at p. 446; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 404405; Federation of Hillside & Canyon Associations (2000) 83 Cal.App.4th 1252, 1262, fn. 8.) Courts have rejected the argument that a mitigated negative declaration and its associated initial study is  inadequate unless it amounts to a full-blown EIR based on expert studies of all potential environmental impacts.  (Gentry, supra, 36 Cal.App.3d at p. 1378.)

We conclude that the record contains substantial evidence that Phase III will not have significant unmitigated water impacts, i.e., the informed expert opinions of City planning staff members and outside experts, and there is therefore sufficient support for the MNDs conclusion that Phase IIIs water impacts will be mitigated to less-than-significant levels. There is no contrary substantial evidence in the record.

4. Traffic Impacts

Union Pacific argues there is substantial evidence in the record that Phase III may have significant traffic effects that have not been reduced to less-than-significant levels by the proposed mitigation measures.[14] We agree that two detailed comment letters submitted by Caltrans on Phase III constituted substantial evidence supporting a fair argument that Phase III would have a significant unmitigated impact on the environment, thereby triggering the requirement to prepare an EIR. The letters, which address issues within Caltranss area of expertise, either directly challenge the factual basis of conclusions in the Phase III traffic study and the MND, or challenge the sufficiency of the evidence in support of those conclusions. In combination, Caltranss critiques constitute substantial evidence that Phase III may have significant unmitigated environmental traffic impacts.

a.       Trial Court Analysis of Traffic Issues

We first consider the trial courts conclusion that the City had no obligation to consider the Caltrans letters when it determined whether to adopt the MND. The court found that the August 2006 letter appears to have been sent by Cal[t]rans in compliance with CEQA Guideline [sic] 21081.6 (c), which required Cal[t]rans to provide the City complete and detailed performance objectives for mitigation measures . . . [,] . . . [but] goes on to state that compliance with the performance objectives shall not limit the authority of the responsible agency . . . to approve, condition, or deny projects as provided by this division or any other provision of law. As indicated in the Guidelines provided as an attachment to the Cal[t]rans letter, the City is required to submit additional detailed information regarding mitigation measures that is not necessarily required to be included in the initial study. Because of the specific, limited purpose of the Cal[t]rans letter, the court does not interpret it as evidence supporting a fair argument that [Phase III] may result in significant impacts on the SR29/SR12 intersection.[15]

We disagree. First, section 21081.6, subdivision (c) applies to a responsible agency, or a public agency having jurisdiction over natural resources affected by the project.[16] We have already concluded that Caltrans was not a responsible agency, and none of the parties contend it was a public agency with jurisdiction over natural resources affected by Phase III. Therefore, section 21081.6, subdivision (c) is inapplicable. Second, regardless of the specific reason the letters were submitted to the City, the letters commented on the environmental effects of Phase III and thus were relevant to the Citys environmental analysis. As the City notes, the letters were included in the packet of information presented to the City Council on Phase III, and the City was required to consider the information when it decided whether to adopt the proposed MND. ( 21091, subds. (d)(1), (f).) If the letters contained substantial evidence supporting a fair argument that Phase III may have a significant unmitigated effect on the environment, the City was required to prepare an EIR.

b.      Trip Generation

The Phase III traffic study (Traffic Study) calculated the number of vehicle trips that would be generated by Phase III using criteria published in the Institute of Transportation Engineers Trip Generation Manual and Trip Generation Handbook. The study applied a trip-generation factor to the size of the Phase III retail components, then reduced the number of generated trips by 20 percent for linked trips and 30 percent for passer-by trips in both the morning and evening peak traffic hours. The resulting trip generation figures formed a large part of the foundation for the rest of the conclusions in the Traffic Study. The MND incorporated these figures and the resulting conclusions.

Caltrans contended there should have been no pass-by trip reduction for morning peak hour trips. Caltrans also questioned the factual and analytical support for the combined linked trip and pass-by trip reductions in the evening peak hour. Because Caltrans has expertise in traffic issues, these comments are substantial evidence that the trip generation section of the Traffic Study underestimates the number of vehicle trips that will be generated by Phase III, and consequently that the traffic impacts of Phase III are understated and insufficiently mitigated. (See Pocket Protectors, supra, 124 Cal.App.4th at p. 928 [expert opinion may qualify as substantial evidence].) Although the consultant who prepared the Traffic Study was also a traffic expert, who apparently disagreed with Caltranss comments, the studys contrary expert opinion does not negate Caltranss opinion as substantial evidence supporting a fair argument that Phase III may have a significant unmitigated impact on the environment. (See ibid.; Guidelines,  15064, subd. (g) [where expert opinions clash, an environmental impact report is required].)

c.      Adverse Traffic Impacts

The Traffic Study concluded that Phase III and other projected development (the Cumulative Plus Project scenario) would have a cumulative adverse impact on traffic flow at five intersections along Highway 29 both north and south of the Phase III (north to south, the intersections at Highway 12, Napa Junction Road, Rio Del Mar, Crawford Way, and American Canyon Road), after considering both the level of service (LOS, a measure of vehicle delay), and queue lengths at the intersections. The Traffic Study also concluded there would be cumulative impacts on traffic flow in three segments of Highway 29 north of Phase III. The MND identified the impacts at the intersections, but not at the three segments of Highway 29.

Caltrans questioned the adequacy of the Traffic Studys analysis of cumulative impacts on Highway 29 traffic flow. Its August 24, 2006 letter stated: LOS computation reports in Appendix B^[[17]] show that spacing between some intersections will not be sufficient to accommodate queuing. If so, then reported LOS for SR 29 segments and intersections are only true if SR 29 segments and intersections are assumed to be independent free bodies. The reported LOS should consider the locations and impacts of queuing, and the relevant discussions and tables should be revised accordingly. [] . . . [] . . . The adequacy of storage between intersections should be assessed for all locations . . . .[18]

Caltranss expert opinion that the analysis of traffic flow on Highway 29 is inadequate and may underestimate the adverse impact on the highway is substantial evidence supporting a fair argument that Phase III may have a significant unmitigated environmental effect.

d.      Mitigation: Highway 29 Widening or Alternative Routes

The Traffic Study identifies three cumulative mitigations. The first is entitled SR 29 Widening, but recommends: SR 29 between American Canyon Road and Napa Junction Road in the southbound direction would need to be widened or new alternative routes to SR 29 would need to be provided. [] Currently, Napa County Transportation Planning Agency (NCTPA) recently completed the SR 29 Corridor Study