Growth Coalition v. City of
Filed 7/3/13 Visalia Smart Growth Coalition v. City of Visalia CA5
REPORT
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opinion has not been certified for publication or ordered published for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
VISALIA
SMART GROWTH COALITION,
Plaintiff and
Appellant,
v.
CITY OF VISALIA,
Defendant and Respondent;
WAL-MART STORES, INC.,
Real Party in Interest and Respondent.
F065525
(Super.
Ct. No. VCU243353)
APPEAL from
a judgment of the Superior Court
of
County. Lloyd L. Hicks,
Judge.
M. R. Wolfe
& Associates, Mark R. Wolfe for Plaintiff and Appellant.
Dooley,
Herr, Peltzer & Richardson, Leonard C. Herr and Ron Statler for Defendant
Respondent.
Gresham,
Savage, Nolan & Tilden, Jennifer M. Guenther and Tracy M. Owens for Real
Party in Interest and Respondent.
-ooOoo-
This case
concerns the City of Visalia’s
approval of a conditional use permit for the expansion of an existing retail
store into a 24-hour supercenter. An
unincorporated association called Visalia Smart Growth Coalition (Coalition)
petitioned the superior court for an order setting aside the city’s approval,
alleging violation of the California Environmental Quality Act (Pub. Resources
Code, § 21000 et seq.)
name="_ftnref1" title="">[1] (CEQA).
The superior court granted and denied the petition in part.
The
Coalition appeals the portion of the court’s decision denying part of the
petition. It contends that the lead
agency, the City of Visalia (city), violated the procedural requirements of
CEQA by failing to disclose required information in the EIR in response to
public comments. In particular, the
Coalition argues that the city failed to provide information and calculations
supporting the EIR’s determination that a 14-foot masonry wall would mitigate
noise impacts for residents living near the store’s proposed loading
docks.
We disagree
and affirm the judgment.
FACTUAL AND
PROCEDURAL HISTORIES
expansion project
Real party
in interest Wal-Mart Stores, Inc. (Walmart), has proposed expanding and
remodeling an existing Walmart store located on East Noble Avenue in
east-central Visalia. The expansion project
extends to the east of the existing store, adding 3.8 acres of adjacent land to
the Walmart site. The project adds
54,076 square feet of floor area to the existing 133,206-square-foot store,
primarily to accommodate a new grocery sales department. The current store hours are 8:00 a.m. to
10:00 p.m., and the operating hours after the expansion will be 24 hours per
day, seven days per week.
The project
site is zoned “Planned Shopping/Office Commercial,†which requires a
conditional use permit for general merchandise stores larger than 40,000 square
feet. The existing Walmart was
constructed pursuant to an approved conditional use permit, which is still in
effect. The land surrounding the project
site is a mix of commercial, office, residential, church, and public facility
uses. The lands to the east and south of
the project site are largely in residential use. Single-family residences are located about 25
to 45 feet south of the southern Walmart property line. There is a wall approximately five to six
feet tall between these homes and the Walmart site. Multi-family residences are located
approximately 10 feet east of the eastern project boundary, and a
five-to-six-foot-tall wall also separates these residences from the project
site. The Walmart loading docks are
currently located at the southeast corner of the store, approximately 100 feet
from the nearest homes to the south and 400 feet from the nearest homes to the
east. There are two truck loading bays and
one trash compactor. A 14-foot masonry
block wall runs from the existing loading dock area eastward about 250
feet.
The project
will add four truck loading bays, for a total of six loading docks, which will
be located at the rear southeast corner of the expanded building. The new loading docks will be about 120 feet
east of the current docks. The existing
trash compactor will be relocated to the east with the loading docks, and a
second trash compactor will be added on the east wall of the expanded building,
north of the relocated loading docks.
Currently,
the store receives up to eight semi-trailer deliveries and up to seven smaller
vendor truck deliveries per day. With
the expansion, the Walmart will receive up to 11 semi-trailer deliveries, of
which about two will be refrigerated trucks, and up to 12 smaller truck
deliveries per day. Deliveries by
semi-trailer could occur any time of day or night.
analysis
The city
hired an environmental consulting firm to prepare a draft EIR (DEIR) on the
expansion project. The DEIR included an
analysis of potential noise impacts. An
acoustics and air quality engineering firm conducted a noise assessment, and
the DEIR’s discussion on noise impacts was based on the firm’s assessment.
As a
preliminary matter, the DEIR explained some relevant terms and units of measure
used in the noise analysis. Sound levels
are usually measured in decibels (dB), and noise measurements that take into
account human hearing are called A-weighted and are expressed as dBA. Different measures of noise levels are used
to account for the changes in noise levels that occur over time. The maximum instantaneous noise level
measured is expressed as Lmax.
The average A-weighted noise level during a specific period of time
(commonly one hour) is Leq.
The “Day/Night Average Sound Level†(italics omitted) takes into account
increased sensitivity to noise during the night by adding a 10 dB penalty to
nighttime (10:00 p.m. to 7:00 a.m.) noise levels and is expressed as Ldn.
A noise
monitoring survey was conducted for a 24-hour period in June 2009 to measure
the existing noise environment at residential receivers near the proposed
loading docks. Daytime hourly average
noise levels ranged from 45 to 57 dBA Leq, nighttime hourly average
noise levels ranged from 42 to 50 dBA Leq, and the day/night average
was calculated to be 55 dBA Ldn.
In
analyzing the noise impacts, the DEIR assumed that an increase in the Ldn
of 3 dBA would be considered a significant impact when the projected noise
levels would exceed those considered satisfactory for the affected land
use. In addition, an increase in the Ldn
of 5 dBA would be considered significant when the projected noise levels would
remain below those considered satisfactory for the affected land use.
with the city’s noise ordinance, Visalia Municipal Code section 8.36.040,
which sets categorical noise level standards.
The ordinance makes it unlawful to create any instantaneous noise that
exceeds 70 dBA Lmax during the day or 65 dBA Lmax during
the evening and nighttime. It is also
unlawful to create a noise that exceeds 50 dBA for a cumulative period of 30
minutes in any one-hour period during the day or 45 dBA during the evening and
nighttime.
The DEIR
reported that the predominant operational noise sources associated with the
project will be additional parking lot activity, increased truck deliveries
made at the rear of the store, the additional trash compactor, additional
roof-top mechanical equipment, and additional loading dock activities. The highest noise levels at adjacent homes
typically will be generated by trucks circulating along the southern and
eastern sides of the store and by loading activities at the southeast corner of
the building. The DEIR reported that heavy
truck deliveries and commercial trash collection generate maximum instantaneous
noise levels of 70 to 75 dBA Lmax at a distance of 50 feet. Maximum instantaneous noise levels generated
by heavy trucks circulating along the south property line are expected to reach
72 to 77 dBA Lmax at the property lines of the nearest residences
when trucks are at a distance of 40 feet.
The project
plan will add a new 14-foot noise barrier to the south of the loading docks
that will provide acoustical shielding for the six single-family residences
nearest the proposed loading area.
According to the DEIR, “[m]aximum noise levels in the rear yards of the
nearest residences behind the proposed 14-foot masonry wall along the southern
site boundary … are calculated to range from 56 to 61 dBA Lmax.†This would be below the city ordinance’s
maximum instantaneous noise levels for day and nighttime. Later in the noise analysis (in a discussion
of noise generated by refrigeration trucks running while parked at the loading
docks), the DEIR stated, “The proposed 14-foot noise barrier would provide 16
dBA of attenuation from this noise source at a receiver positioned 5 feet above
the ground.â€
The initial
project plan also included the construction of an eight-foot wall to the
east. With the eight-foot barrier, truck
circulation would generate maximum instantaneous noise levels ranging from 65
to 70 dBA Lmax at the nearest residences along the easternmost
property boundary. The DEIR determined
that the project’s operational noise impacts would be significant since the
noise generated would exceed the nighttime noise level limit of 65 dBA Lmax. The DEIR suggested increasing the height of
the wall planned along the eastern boundary to 15 feet, which would reduce
noise to within the nighttime noise level limit. This suggestion was adopted by Walmart and
incorporated into the project plans.
comments, final EIR, and approval of the project
The DEIR
was circulated for public review and comment.
The public comment period began on October 14, 2010 and ended
November 29, 2010. In a letter
dated November 29, 2010, the Coalition commented on many aspects of the
DEIR, including its discussion of the project’s noise impacts. Among other things, the Coalition questioned
the DEIR’s conclusion that the planned 14-foot wall would be an adequate noise
barrier. It cited the Federal Highway
Administration’s (FHWA) “Highway Traffic Noise Analysis and Abatement Policy
and Guidance†(June 1995) and wrote that the FHWA has concluded that it is very
difficult to attain attenuation over 15 dBA through sound barriers. “In view of this,†the Coalition wrote,
“please explain on what basis the DEIR or Noise Assessment determined that a 14
foot wall would result in attenuation of 16 dBA .…†It specifically requested “any calculations
used to determine the attenuation provided by the sound wall for each instance
in which attenuation from the sound wall was assumed to reduce noise to
receivers†and identification and documentation of “any assumptions regarding
the efficacy of barriers.â€
The city
released the final EIR (FEIR) in April 2011.
It addressed the Coalition’s comments regarding the 14-foot wall as
follows:
“Sound Wall:
The reference made to FHWA’s discussion regarding noise barrier limitations
is misleading. FHWA presents this
information based on its experience with highway noise and highway noise
barriers. Highways are characterized as
line sources whereas noise sources associated with delivery trucks, loading and
unloading activities, mechanical equipment, etc. are treated as point
sources. The maximum practical reduction
provided by a noise barrier for a point source is 24 dBA.
“The methodology used to predict noise levels followed
standard barrier theory and assumed spherical propagation losses with no excess
attenuation. Noise source locations were
based on the geometrical information contained in the project plans, as
discussed in detail on page 212 of the DEIR, and were calculated at either
the residential property plane or at a position 15 feet inside the residential
property plane (approximating the center of the rear yard) to calculate the
barrier insertion loss.â€
On
April 25, 2011, the city planning commission held a public hearing on the
project. The Coalition submitted a
letter to the commission, dated April 25, 2011, criticizing the FEIR’s
response to its previous comments. With
respect to the 14-foot wall as a noise barrier, the Coalition wrote:
“In our comments on the Draft
EIR, we questioned the assumption that the proposed 14 foot sound wall would
attain 16 dB of noise attenuation, citing an FHWA publication that indicated it
is ‘very difficult’ for sound walls to [attenuate] noise by more than 15
dB. We asked for calculations of assumed
attenuation and documentation of any assumptions regarding the efficacy of
barriers. In response, the Final EIR
asserts, without documented authority (other than an oblique reference to
‘standard barrier theory’), or calculations that the FHWA publication applies
to line sources and that a 24 db attenuation is possible for point sources like
the Project. The Final EIR does not
provide calculations or document its assumed barrier efficacy, other than to
say it was based on data in the Project plans.
This is simply unresponsive to our request in comments on the Draft EIR
that the City ‘document any assumptions regarding the efficacy of
barriers.’â€
During the
public hearing, many speakers offered their opinions on the expansion
project. For example, a resident who
lived south of the Walmart store opposed the project. She told the planning commission that her
home was five feet away from the current 14-foot wall and, during a previous
remodeling project, she heard “a lot of forklift noises, hydraulic noises,
[and] delivery trucks.†She believed the
new project would be extremely disruptive to the neighbors.
A
consultant from the acoustics firm that conducted the noise analysis also spoke
at the hearing. He explained that a
sound wall “doesn’t mean that you’re not going to hear activities at some point
in time.†He continued, “All of our
conservative calculations were made with the new sound walls in place, the
existing sound walls, and were found to meet the City’s municipal code limits
both day and night. So hopefully that
answers that.†The consultant also
addressed the Coalition’s letter as follows:
“[W]ith regard to the [Coalition] letter, there’s a
statement that the—a noise barrier 14 feet high could not achieve a 16-decibel
reduction or that would be very difficult.
There’s a little bit of confusion here because this is referencing an
F.H.W.A. statement, Federal Highways Administration, which deals with freeways,
line sources, these are much more difficult to mitigate than point
sources. And the practical limit for
reducing noise from a point source, such as a maximum noise level from a door
slam or a truck or pallet jacks, is 24.
So we’re well within the range of feasible noise reduction.â€
After the
close of the public hearing, the commission voted to certify the FEIR and
approve Walmart’s conditional use permit application, subject to certain
conditions. One of the conditions
required a follow-up study of noise impacts after the expansion project was in
operation. It provided:
“Within one year of commencement of operations of the
expanded store area or new loading docks, the applicant shall bear the costs of
one acoustical [analysis] conducted by the noise consultant the City retained
to prepare the EIR’s noise study and EIR analysis. The study shall be undertaken at the City’s
sole discretion and timing. The purpose
of the [analysis] shall be to establish the project’s compliance with Community
Noise Standards for sensitive receptors adjacent to the project site.â€
The vote was three in favor and two against.
to city council, response from consultants, and denial of appeal
In a letter
dated May 4, 2011, the Coalition appealed the planning commission’s
actions of certifying the EIR and approving the project to the city
council. The environmental consultants
who prepared the EIR wrote a rebuttal memorandum to comment letters the city
received on April 25, 2011, including the Coalition’s letter. This rebuttal memorandum was dated
May 11, 2011. As part of the
rebuttal, the acoustics firm that conducted the noise analysis prepared a
response to the comments regarding the 14-foot wall as follows:
“The reference made to FHWA’s discussion regarding noise
barrier limitations misleads the reader, causes confusion, and is not
applicable to noise barrier attenuation from sources such as delivery trucks,
loading and unloading activities, mechanical equipment, etc. Industry-accepted methods [citing Harris,
Cyril M., Handbook of Acoustical Measurements and Noise Control, Third Edition
(1998) (Harris’s Handbook)] were used to calculate noise levels assuming
distance from the noise source and the attenuation provided by noise
barriers. Noise attenuation with
distance from a point source follows the ‘inverse square law’ of sound
propagation, where sound pressure levels decrease at a rate of 6 dB per
doubling of distance from the source.
The attenuation provided by a ‘thin’ noise barrier, such as a masonry
wall, results from a single-diffraction of sound, and is calculated by
determining the difference in distance that the sound travels assuming a noise
barrier is in place (diffracted path) as compared to the direct path assuming
no noise barrier is in place (line-of-sight path). The barrier provides a noise reduction for
receivers located within its ‘shadow zone,’ and for … each calculation,
receivers were assumed to be located 15 feet from the noise barrier, and
clearly within the ‘shadow zone’ of a 14-foot noise barrier. As discussed previously, the maximum practical
reduction provided by a thin noise barrier is 24 dBA, and the predicted noise
reduction is well within the feasible range of noise reduction that could be
provided by a 14-foot noise barrier.â€
(Fn. omitted.)
The
Coalition then hired Derek Watry, a principal at another acoustical consulting
firm, to review the DEIR, FEIR, and the city’s rebuttal memorandum. In a letter dated May 14, 2011, Watry
wrote that the sound attenuation attributed to the 14-foot wall was “overly
optimistic†at least in part because the equation provided by Harris’s Handbook
did not account for real-world physical conditions. Watry explained:
“Unlike the idealized situation represented in [Harris’s
Handbook], the Walmart wall is not in the middle of an open field. Rather, the Walmart store itself is only 40
[feet] away and is itself roughly 25 [feet] high. The acoustically hard space formed by the
building, the pavement, and the wall will be a reverberant space in which sound
energy will build up, effectively amplifying the level and raising the height
of the noise source. Additionally, sound
will reflect off the part of the building that is higher than the top of the
sound wall, creating a secondary, pseudo-source. Finally, the truck itself presents a large,
flat, hard surface from which sound will both radiate and reflect. Treating this situation as a point source
(which, for practical purposes, means the dimensions of the object are much
smaller than the other distances involved) in an open field is overly
simplistic.…
“Acoustical modeling of this situation would take more
time than available. Had calculations
been provided, we could have reviewed those, but they have not been. Given the reference to [Harris’s Handbook]
text, the explicit statement that the barrier attenuation ‘results from a
single diffraction of sound,’ and the 16 dB efficacy which is higher than the
FHWA and INCE [International Institute of Noise Control Engineering] studies
indicate likely, it would seem very unlikely that the noise analysis for the
Walmart DEIR accounts for the degradation due to the real world
conditions.â€
Watry also noted that the DEIR was inconsistent in
describing the southern walls—the DEIR at different places referred to 17-foot
and 15-foot walls, as well as the planned extension of the 14-foot wall.
A public
hearing on the Coalition’s appeal was held on May 16, 2011. In support of the appeal, the Coalition
submitted a letter to the mayor and city council dated May 16, 2011, with
attached documents, including the Watry letter.
In
addition, neighbors of the Walmart store spoke at the hearing. For example, one resident told the city
council that 24-hour operation would “create quite a disruptive atmosphere to
our lives.†He specifically mentioned
noise pollution, which was already an issue with the current operation of the
store. Another speaker read a letter
signed by homeowners who were unable to attend the hearing. She read, “For years we have endured loud
noises from revving truck engines, beeping forklifts, delivery vehicles, and
the use of storage facilities at the store.
The sounds occur at all hours of the night and early morning. Some of us have complained repeatedly to the
city, to no avail. The noise disturbs
our sleep and causes substantial stress.â€
She expressed concern that mitigation efforts would fail, “just as the
existing sound wall, which is supposed to shield our homes from Wal-mart noise,
clearly does not work at all.â€
After
hearing testimony from the public, the city council closed the hearing, and
city staff requested a continuance to allow the city’s environmental
consultants to review and respond to the Coalition’s most recent letter, which
was submitted on the day of the hearing.
The city’s
environmental consultants prepared a response to the Coalition’s May 16,
2011, letter. Regarding the comments
about reflected and amplified noise, the consultants wrote:
“The commenter and his retained noise consultants
indicate that the soundwalls would be less effective than the DEIR concluded
due to ‘refraction’ from ‘radiated reflective noise.’ This possibility was in fact taken into
account during preparation of the noise analysis.… The orientation of the building with respect
to the location of [a] truck when it is nearest the most-affected neighbors
would not allow for a direct reflection of noise back toward the
residences. [¶] Possible minor reflections off of the
expanded Walmart building were accounted for in the calculations of noise
levels at offsite receiver locations and were determined to be negligible at a
distance of 200 feet (i.e. the distance between [a] large truck and the Walmart
Building when the truck would be closest to the receiver [at the location
tested]), given the building’s orientation.â€
In response
to the Coalition’s reference to FHWA standards, the consultants reiterated
their position that there is a difference between a line source, such as a
freeway, and a point source, such as a retail store site. They explained that a line source is
“‘[m]ultiple point sources
moving in one direction, e.g., a continuous stream of roadway traffic,
radiating sound cylindrically [along a line].’â€
Sound levels from a line source decrease at a rate of 3 dB per doubling
of distance. Sound levels measured from
a point source, on the other hand, decrease at a rate of 6 dB per doubling of
distance. Delivery trucks and unloading
activities are considered point sources because they generate individual and
intermittent noises from a single source, not continuous noise distributed
along a line.
The
consultants also briefly discussed what they meant by “standard barrier
theory.†Under standard barrier theory,
the noise reduction that can be achieved by a sound wall is based on the
difference between the distance the sound travels to a receiver with the
barrier in place and the distance the sound travels to the receiver in a direct
path with no barrier in place (known as the “line-of-sight pathâ€). A table was included showing the expected
range of reduction in sound level by path-length difference. It was explained that the line-of-sight path
from the nearest noise source to the nearest residential receiver is 45
feet. The diffracted path length from
the nearest noise source over the planned 14-foot wall to the nearest receiver
is 48.5 feet. The calculated reduction
in sound level based on the path difference is 15 dBA. The response included attached calculations
from the acoustics firm that prepared the noise analysis. These appear to be handwritten calculations
on lined note paper.
On
June 20, 2011, the city council voted to deny the Coalition’s appeal. The city council upheld the approval of the
conditional use permit for the expansion project subject to various added
conditions, including the prohibition of loading dock deliveries and bailing
and pallet operations between the hours of 10:00 p.m. and 6:00 a.m.
Writ petition
The
Coalition filed a petition for writ of mandate on July 19, 2011,
challenging various aspects of the EIR.
The Coalition prevailed on an issue unrelated to the noise analysis, and
the trial court ordered the city to set aside certification of the EIR. The court, however, rejected the Coalition’s
arguments regarding the noise analysis.
The court reasoned:
“Petitioners’
comments included a demand that they be provided the actual calculations of the
experts. The response to this demand was
to advise that it was ‘standard barrier theory.’ [¶]
Petitioners claim they need the calculations to ‘check the math.’ The calculations were ultimately provided
after the comment period expired.
“The
goal of CEQA is to provide information that is ‘meaningful and useful to
decision makers and the public’ … and not just to generate
paper .… [¶] The actual calculations were utterly
meaningless to a non-expert, and not necessary for an expert, who could use ‘standard
barrier theory’ to ‘check the math.’
[¶] There was no error by City in
the response to comments relating to barrier noise attenuation.â€
The
Coalition filed a notice of appeal on July 27, 2011.
DISCUSSION
“The EIR
has often been called the heart of CEQA.
[Citation.] It is an
informational document whose purpose is to inform the public and decision
makers of the environmental consequences of agency decisions before they are
made. [Citation.]†(Woodward
Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683,
706.) “An adequate EIR must be ‘prepared with a sufficient degree of analysis
to provide [decision makers] with information which enables them to make a
decision which intelligently takes account of environmental consequences.’ [Citation.]
It ‘must include detail sufficient to enable those who did not
participate in its preparation to understand and to consider meaningfully the
issues raised by the proposed project.’â€
(Dry Creek Citizens Coalition v.
County of Tulare (1999) 70 Cal.App.4th 20, 26.) “CEQA requires an EIR to reflect a
good faith effort at full disclosure[, but] it does not mandate perfection, nor
does it require an analysis to be exhaustive.â€
(Ibid.)
“A public
agency’s decision to certify the EIR is presumed correct, and the challenger
has the burden of proving the EIR is legally inadequate.†(Santa
Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1546.) The Court of Appeal reviews the trial court’s
decision de novo, applying the same standards to the agency’s action as the
trial court applies. (
When a petitioner challenges an
agency’s decision based on alleged noncompliance with the provisions of CEQA,
the reviewing court’s inquiry extends “only to whether there was a prejudicial
abuse of discretion.â€
(§ 21168.5.) “Abuse of
discretion is established if the agency has not proceeded in a manner required
by law or if the determination is not supported by substantial evidence. The court does not pass on the correctness of
an EIR’s environmental conclusions, but determines whether the EIR is
sufficient as an informational document.
[Citations.]†(
Tulare, supra, 70 Cal.App.4th at
p. 26.)
“When the specific claim of legal
error concerns an omission of required information from the EIR, the plaintiff
must demonstrate that (1) the EIR did not contain information required by
law and (2) the omission precluded informed decisionmaking by the lead
agency or informed participation by the public.
[Citation.] These two elements
constitute an abuse of discretion and prejudice, respectively, and together
form reversible error.†(
of Madera (2011) 199 Cal.App.4th 48, 76-77.)
In this appeal, the Coalition does
not challenge the sufficiency of the evidence supporting the city’s
findings. It contends only that the city
violated CEQA by failing to disclose the factual basis for the EIR’s conclusions
regarding the effectiveness of noise mitigation.
First, the Coalition asserts that
the acoustics firm’s noise attenuation calculations should have been included
in the DEIR or in a technical appendix to the DEIR. The noise analysis section of the DEIR
informed readers of the potential increase in noise from additional truck
deliveries and other operational activities that would result from expanding
the store. The DEIR quantified the
likely increase in deliveries (about three additional semi-trailer deliveries
and five additional smaller truck deliveries per day) and described in weighted
decibels the maximum instantaneous noise created by the circulation of heavy
trucks (72 to 77 dBA Lmax at the property lines of the nearest
residents). It described the proximity
of nearby single-family and multi-family residences to the proposed loading
docks. It reported that a 14-foot wall
would be built, and an acoustics firm had calculated that the wall would reduce
operational noise to within the limits set by the city noise ordinance. This gave readers information on the
project’s potential noise impacts and the basis for the DEIR’s determination
that operational activities would not result in significant noise impact.
While it may have been helpful to
certain readers (those with technical knowledge of acoustics) to have included
the noise attenuation calculations in an appendix (see Cal. Code Regs.,
tit. 14, § 15147), we decline to hold that the DEIR was inadequate
under CEQA merely because the noise attenuation calculations were not included. As we have discussed, an EIR should provide
sufficient information for decision makers to take account of environmental
consequences, but it need not be exhaustive.
(San Francisco Ecology Center v.
City and County of San Francisco (1975) 48 Cal.App.3d 584, 594.) The DEIR in this case provided sufficiently
detailed analysis to alert the public to the noise issue and to allow decision
makers to intelligently take account of the noise that would be generated by
the expansion project.
The Coalition cites
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442 (
proposition that, if an agency certifying an FEIR as complete has “relied on
information not actually incorporated or described and referenced in the FEIR,â€
the agency has failed to proceed in the manner provided in CEQA. The facts of Vineyard Area Citizens, however, are distinguishable from the
present case. In Vineyard Area Citizens, our Supreme Court concluded that the EIR
for a large mixed-use development project lacked substantial evidence of a
sufficient long-term water supply for the project. (Vineyard
Area Citizens, supra, at p. 439.)
The court observed factual inconsistencies and lack of clarity in the
discussion of (1) future demand for water in the area and (2) the
amount of new surface water potentially available to serve that growth. (Ibid.) The FEIR used varying water supply figures in
different parts of its discussion, and it relied on a prior water agreement but
used estimates that diverged from the prior agreement without explanation. (Id.
at pp. 423, 439-440.) The FEIR also
noted that a full analysis would be available in a water agency’s plan update
that was not yet complete. (
agency could not salvage an incoherent FEIR based on information not
incorporated in the FEIR.
In this case, the DEIR did not rely
on a future plan or project, and there were no inconsistencies or obfuscations
similar to those described in Vineyard
Area Citizens. The DEIR clearly
relied on a noise analysis performed by an acoustics firm. Further, in Vineyard Area Citizens, the court concluded that the lack of
clarity in the EIR and its reliance on a future plan demonstrated there was no
substantial evidence to support the the EIR’s determinations. Here, in contrast, there is no claim that the
EIR lacked substantial evidence. For these
reasons, the Coalition’s reliance on Vineyard
Area Citizens is misplaced. The
Coalition’s main contention is not that CEQA required the inclusion of the
noise attenuation calculations initially, but that the city failed to provide a
meaningful response to the Coalition’s comment made during the public review
and comment period.
The Guidelines for Implementation of
the California Environmental Quality Act (Cal. Code Regs., tit. 14,
§ 15000 et seq., hereafter Guidelines) provide that a lead agency must “evaluate
comments on environmental issues received from persons who reviewed the draft
EIR†and prepare a written response.
(Guidelines, § 15088, subd. (a).) “The written response shall describe the
disposition of significant environmental issues raised (e.g., revisions to the
proposed project to mitigate anticipated impacts or objections). In particular, the major environmental issues
raised when the lead agency’s position is at variance with recommendations and
objections raised in the comments must be addressed in detail giving reasons
why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis
in response. Conclusory statements
unsupported by factual information will not suffice.†(Id.,
subd. (c).)
In
Tuolumne (1982) 138 Cal.App.3d 664, 678-687 (Twain Harte Homeowners), we discussed the scope of a lead agency’s
discretion in responding to public comments.
The case involved approval of a county general plan; members of the
public submitted comments on a variety of matters, and the lawsuit claimed that
the county’s responses, included in the final EIR, were inadequate. We disagreed, explaining:
“The determination of the
sufficiency of County’s responses to comments upon the draft EIR turns upon the
detail required in such responses.… The
sufficiency of the EIR is to be viewed in light of what is reasonably
feasible. Courts should look for
adequacy and completeness in an EIR, not perfection. [Citation.]
‘While the decision makers must take account of environmental objections
[citations], satisfactory answers to these objections may be provided by
reference to the EIR itself [citation].’
[Citation.] … [¶] In the instant case it does appear that the
County responded fully and adequately to comments in numerous instances and
that they addressed in great detail many of the issues raised by
appellant. The responses as a whole
evince good faith and a reasoned analysis, despite the fact that the responses
are not exhaustive or thorough in some specific respects. They adequately serve the disclosure purpose
which is central to the EIR process.†(
In this
case, the Coalition referred to a noise policy from the FHWA that indicated it
was very difficult to attain 15 dBA of attenuation by a noise barrier and
requested the “basis†for the DEIR’s determination that a 14-foot wall would
result in attenuation of 16 dBA and “any calculations used.†In response, the FEIR explained that the FHWA
policy related to line sources of noise, whereas the Walmart operational noises
were treated as point sources. For point
sources, the maximum practical reduction provided by a noise barrier is 24
dBA. The response did not include any
calculations as requested by the Coalition, but it did describe the basis for
the determination that the 14-foot wall would achieve a 16 dBA reduction of
noise, stating: “The methodology used to
predict noise levels followed standard barrier theory and assumed spherical
propagation losses with no excess attenuation.
Noise source locations were based on the geometrical information
contained in the project plans .…â€
This
response adequately served the disclosure purpose which is central to the EIR
process. (Twain Harte Homeowners, supra,
138 Cal.App.3d at p. 686.) The Coalition
asserts that the FEIR’s failure to provide noise attenuation calculations in
response to a specific request for such calculations violated CEQA as a matter
of law, but it is not the rule that every information request must be answered
in detail. “When responding to comments,
lead agencies need only respond to significant environmental issues and do not
need to provide all information requested by reviewers, as long as a good faith
effort at full disclosure is made in the EIR.â€
(Guidelines, § 15204, subd. (a).) “The level of detail required in a response
to a comment depends on factors such as the significance of the issues
raised .…†(City of Long Beach v. Los Angeles Unified School Dist. (2009) 176
Cal.App.4th 889, 901.) Here, the
Coalition’s comment and information request did not raise “major environmental
issues†at variance with the EIR (Guidelines, § 15088, subd. (c)) or
significant new issues.
The issue
of increased operational noise from the expansion project had been raised in
the DEIR and discussed in detail. The
Coalition’s comment simply questioned the efficacy of the proposed sound wall,
given the FHWA’s statement that it was difficult to attain that level of
attenuation with a noise barrier alone.
In response, the FEIR addressed the Coalition’s concern, explaining that
the FHWA policy applied to a different type of noise source and was not
relevant to the noises generated by the expansion project. This was responsive to the Coalition’s comment,
and nothing in the record suggests that it was not made in good faith.
The
Coalition relies on three cases to support its position that the FEIR’s
response to its request for noise attenuation calculations was deficient as a
matter of law. We conclude, however,
that this case is not analogous to the cited cases.
Cal.App.3d 761, 767, concerned a proposal to develop a subdivision on 275 acres
that was zoned for light agricultural use.
A 13-page draft EIR, including
an addendum, was circulated for comment.
(Id. at p. 768.) During the comment period, the county
received comments from the Kern County Health Department, the United States
Forest Service, and the Kern County Public Works Department indicating that the
proposed high density development project would require significant amounts of
underground water and would adversely affect other water users in the
area. (Id. at p. 771.)
Although the final EIR failed to respond to these comments, the county
certified the EIR. The Attorney General
filed an action challenging the adequacy of the EIR, and this court concluded
that the EIR was fatally defective. (
Subsequently, the county adopted a
resolution in an attempt to comply with CEQA.
(People v. County of Kern,
p. 766.) In response to the
previous comments regarding water supply, the resolution provided, “
underground water available from these three wells is fully adequate to supply
all projected water needs of the residents who would reside upon the property
if [the applicant] is allowed to develop the property [as proposed].†(Id.
at p. 772.) We concluded, however,
that the county’s resolution failed to respond to the claimed inadequacy of
data to determine the effect of the development on the ground water
supply. (Id. at p. 771.) Despite
the reference to “[a]ll available data,†the county had failed to identify
that the water supply was adequate. (
could cost as much as $100,000 to $200,000 to conduct a water resources study
of the area. We recognized that the cost
did “not absolve the [county] of its duty of making a response based on
specified current data or water studies of some kind which would indicate the
true picture of the water supply for the area.â€
(Id. at p. 773.) In sum, the resolution was “window dressingâ€
and was not a good faith response to adverse environmental criticisms. (Id.
at p. 775.)
In Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 352, a
landowner proposed amending a county general plan to change the zoning
designation for his land from exclusively agricultural to planned development. During the comment period for the EIR for
this proposal, the air resources board commented that the air quality analysis
was inadequate as there was no air quality analysis at all. The air resources board wrote that the county
would need to discuss estimated emissions generated by the project and
mitigation measures to reduce the impact of the project. (Id.
at p. 357.) The county
responded: “‘The Air Resources Board
seems very concerned with the effect of the proposed project on air
quality. This was not one of the
concerns of the Environmental Review Committee and as such was not discussed
extensively. On a regional basis the
increase in traffic generated by the proposed use is insignificant. For this reason, mitigation measures were not
discussed.’†(Id. at p. 358.)
This court concluded that the
county’s cursory response to the air resources board’s comments was
inadequate. We observed, “‘“[W]here
comments from responsible experts or sister agencies disclose new or
conflicting data or opinions that cause concern that the agency may not have
fully evaluated the project …, these comments may not simply be
ignored. There must be good faith,
reasoned analysis in response.â€â€™â€ (
People v. County of Kern,
p. 771.)
Santa
Clarita Organization for Planning the Environment v. County of Los Angeles
(2003) 106 Cal.App.4th 715, 718 (SCOPE),
involved a proposed mixed residential and commercial development, including
2,545 housing units. The draft EIR
described the water supply for the project based in part on State Water Project
(SWP) entitlements. (
completed. (Id. at p. 721.) During
the public comment period, the county received a comment indicating there was
no guarantee that water purveyors would receive their full SWP
entitlements. (Id. at p. 719.) The
final EIR included a response to the comment, but the Court of Appeal concluded
that the response was not sufficient.
The court explained:
“It is
not enough for the EIR simply to contain information submitted by the public
and experts. Problems raised by the
public and responsible experts require a good faith reasoned analysis in
response. [Citation.] The requirement of a detailed analysis in
response ensures that stubborn problems or serious criticism are not ‘swept
under the rug.’ [Citation.]
“Here
the draft EIR gives no hint that SWP entitlements cannot be taken at face
value. It is only in response to
comments and submissions by project opponents … that the EIR obliquely
acknowledges that the entitlements may not be all they seem. Instead of undertaking a serious and detailed
analysis of SWP supplies, the EIR does little more than dismiss project
opponents’ concerns about water supply.
Water is too important to receive such cursory treatment.
“The
final EIR’s acknowledgement that there ‘could be a deficit of supply’ does not
cure the defect. Without some reasonably
accurate estimate of SWP’s ability to deliver water, it is impossible to judge
how likely or how deep the deficit might be.â€
(SCOPE, supra, 106 Cal.App.4th at p. 723.)
The court concluded
that the county’s approval of the EIR was not supported by substantial
evidence. (SCOPE, supra, 106
Cal.App.4th at p. 724.)
The facts of this case are nothing
like the cases cited by the Coalition.
The city undertook a noise analysis and the noise discussion in the DEIR
was based on that analysis. The FEIR did
not ignore or brush off the Coalition’s concern; it addressed the concern by
explaining that the FHWA policy was not applicable.
Further, the Coalition has not met
its burden of demonstrating prejudice.
“Noncompliance with CEQA’s information disclosure requirements is not
per se reversible; prejudice must be shown.â€
(Association of Irritated
Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391.) “Failure to comply with the information
disclosure requirements constitutes a prejudicial abuse of discretion when the
omission of relevant information has precluded informed decisionmaking and
informed public participation, regardless whether a different outcome would
have resulted if the public agency had complied with the disclosure
requirements.†(Bakersfield Citizens for Local Control v. City of Bakersfield
(2004) 124 Cal.App.4th 1184, 1198.) An
omission is prejudicial “if the decision makers or the public is deprived of
information necessary to make a meaningful assessment of the environmental
impacts.†(Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201
Cal.App.4th 455, 468.)
In this case, the DEIR included a
detailed discussion of the noise generated by the expansion project and
described the 14-foot wall that will be built to shield southern neighbors from
noise. The FEIR explained that the
acoustics firm that prepared the noise analysis treated operational noises as
point sources, and its noise attenuation calculations used “standard barrier
theory and assumed spherical propagation losses with no excess
attenuation.†This provided the decision
makers and the public with sufficient information to assess the project’s
operational noise impacts. We observe
that the proposed 14-foot wall will be an extension of an existing 14-foot
masonry block wall.
Even without the noise-attenuation
calculations, readers of the EIR (most of whom likely did not possess technical
knowledge of acoustics) understood that the proposed 14-foot wall will be
similar to the existing wall. For
example, a resident south of the current 14-foot wall told the city planning
commission that she had heard construction noises during a previous remodeling
project, and later, a group of residents wrote to the city council to object to
the expansion project, noting that the existing wall did not work to shield
their homes from Walmart noise. Thus,
the decision makers were well aware of the issues of the potential noise impact
of the expanded Walmart on nearby residents generally and the efficacy of the
proposed sound wall specifically. The
planning commission required a follow-up noise analysis to ensure the project
was in compliance with community noise standards. The city council added the condition that
loading dock deliveries could not occur between 10:00 p.m. and 6:00 a.m. Under these circumstances, the decision
makers were not precluded from making an informed decision on the project, and
the public was not precluded from informed public participation.
DISPOSITION
The judgment affirmed. Respondents are awarded
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Detjen, J.
name="_ftn1" title=""> [1]Subsequent statutory references
are to the Public Resources Code unless indicated otherwise.
name="_ftn2" title=""> [2]It appears that “satisfactoryâ€
noise levels for residential land use as used in the DEIR means noise levels
not exceeding 65 dBA Ldn.
This would comply with Policy 1.2 of the noise element of the city’s
general plan, which is described on page 201 of the DEIR.
