Pfeiffer v. City of Sunnyvale City Council (200 Cal. App. 4th 1552, 2011)

Opinion

BAMATTRE-MANOUKIAN, Acting P. J.

I. INTRODUCTION

This CEQA case arises from a proposal to expand a medical campus in the City of Sunnyvale (City). The Palo Alto Medical Foundation (PAMF) proposed to demolish one existing medical office building, a parking lot, and three single-family residences, and replace them with a larger medical office building, a parking garage, and a storage and waste management area. After preparing an environmental impact report (EIR) concerning PAMF’s proposed project and considering public comments, in June 2009 the City of Sunnyvale City Council (city council) certified the EIR and approved the project. Two neighboring homeowners, appellants Jeni L. Pfeiffer and Eleanor Hansen, challenged the City’s certification of the EIR and approval of PAMF’s project by filing a petition for writ of mandate in the trial court. The trial court denied the petition after rejecting their contentions that the EIR was inadequate and the proposed project was inconsistent with the City’s general plan.

On appeal, Pfeiffer and Hansen (hereafter, appellants) contend that the trial court erred in denying their writ petition because (1) the PAMF project as approved is inconsistent with the City’s general plan, since the three single-family residences to be demolished and replaced with a storage and waste management area are located on land that must be used exclusively for single-family detached homes; (2) the EIR’s discussion of general plan conformity is inadequate; (3) the EIR used a legally incorrect traffic baseline for determining the project’s traffic impacts; (4) the EIR is inadequate because it used a hypothetical background traffic noise level instead of existing traffic noise levels to determine traffic noise impacts; and (5) the EIR’s discussion of traffic noise impacts is inadequate.

For reasons that we will explain, we find no merit in appellants’ contentions and therefore we will affirm the judgment.

H. FACTUAL AND PROCEDURAL BACKGROUND

A. PAMF’s Proposed Project

PAMF’s existing medical campus in the City of Sunnyvale includes a 14,373-square-foot medical office building, a 72,065-square-foot medical office building, a 16,195-square-foot office building, a 5,000-square-foot office building, a surface parking lot, and three single-family residences on Kenney Court. One of the residences is being used by PAMF as an office. The land uses surrounding the PAMF medical campus include single-family residential, commercial, retail, and a school.

PAMF sought approval from the City for an expansion of its medical campus. The expansion project proposed by PAMF involved the demolition of the existing 72,065-square-foot building, the three single-family residences on Kenney Court, and a surface parking lot. As initially proposed, the project’s new construction included a 150,000-square-foot, three-story medical office building with two levels of underground parking, a four-level aboveground parking structure, and a 3,250-square-foot storage and waste management area. The existing 16,195-square-foot building and the existing 14,373-square-foot building would remain. Additionally, PAMF proposed rezoning the property where the buildings and the surface parking lot to be demolished were located from low-medium density residential with an office/planned development combining district to public facilities/planned development combining district.

B. The Environmental Impact Report

The City issued a notice of preparation of an EIR for the PAMF project on October 22, 2008. A publicly noticed scoping meeting for the general public and public agencies was held on October 29, 2008. A draft EIR was circulated for public comment in January 2009 and provided to public agencies, adjacent property owners, and members of the public who had requested notice. The draft EIR includes a transportation impact analysis, an air quality study, a noise assessment, a tree survey, a geotechnical investigation, a stormwater drainage plan, a hazardous materials phase I and asbestos and lead investigation for Kenney Court, a sanitary sewer analysis, and an alternatives analysis.

A final EIR for the PAMF project was published in May 2009. The final EIR includes the draft EIR, the City’s responses to all oral and written comments received on the draft EIR, text changes to the draft EIR, and a draft mitigation monitoring and reporting program. The final EIR also indicates that PAMF submitted revised plans that reduced the building originally proposed to be 150,000 square feet and 58 feet high to 120,000 square feet and 38 feet high with a 52-foot-high pavilion. The revised plans also reduced the proposed four-story parking garage to two stories.

C. The City’s Approval of PAMF’s Project

On June 23, 2009, the city council adopted resolution No. 389-09, which certified that the EIR was completed in compliance with CEQA. The city council also approved the revised PAMF project on June 23, 2009. Relevant to this appeal, the resolution states that the PAMF project is consistent with the City’s general plan as to land use, transportation, and noise. The resolution further states that although significant environmental impacts have been identified, with respect to construction noise, operational noise, and intersection traffic, among other things, “the City Council finds that each significant impact identified in the EIR is acceptable because mitigation measures have been required in order to reduce each effect to the extent feasible.” However, the city council did not approve PAMF’s request for rezoning, instead approving the maintenance of the existing zoning designation of low-medium density residential with an office/planned development combining district.

D. The Petition for Writ of Mandate

On July 27, 2009, appellants filed a petition for writ of mandate challenging the City’s approval of the PAMF project. Appellant Pfeiffer identified herself as “a resident and taxpayer in the City of Sunnyvale, living across the street from the site proposed for the new medical office buildings proposed to be built . . . .” The petition named the city council as respondent and PAMF as real party in interest, and asserted causes of action for CEQA violation, general plan inconsistency, and zoning violation.

In their memorandum of points and authorities filed in support of the petition, appellants contended that the PAMF project was inconsistent with the City’s general plan. They also contended that the EIR was inadequate because it used a legally incorrect baseline for traffic and traffic noise, was inconsistent as to whether construction noise was an unavoidable impact, and the discussions of general plan consistency and solar interference were inadequate.

The City and PAMF filed a memorandum of points and authorities in opposition to the petition. They argued that appellants had failed to meet their burden to demonstrate that the City’s determination that PAMF’s project was consistent with the general plan was arbitrary and capricious. They also argued that appellants had not shown that the City abused its discretion in approving the EIR, since there was substantial evidence to show that the EIR had used an appropriate baseline for measuring the project’s impact on traffic and traffic noise, the discussion of construction noise impact was not misleading, and the discussion of solar interference was adequate.

Finally, the City and PAMF argued that the third and fourth causes of action for zoning violation must be dismissed because appellants had failed to present any evidence or argument to support those causes of action.

E. The Trial Court’s Order

The trial court’s order denying the petition for writ of mandate was filed on October 6, 2010. The court concluded that none of appellants’ contentions had merit, finding that (1) the City’s determination that the PAMF project was consistent with several goals of the general plan was reasonable; (2) the EIR’s use of multiple traffic baselines to analyze traffic impacts and traffic noise impacts was appropriate; (3) although the draft EIR mistakenly listed construction noise in one chart as an impact that could be reduced to below significance, overall the EIR properly identified construction noise as a significant impact that could not be mitigated to low significance; and (4) the City’s response to a letter from appellants’ counsel regarding the City’s compliance with the solar protection ordinance was adequate. The third cause of action for zoning violation was deemed abandoned.

Appellants filed a notice of appeal from the trial court’s order on November 24, 2010. An order denying a petition for writ of mandate under CEQA is treated as an appealable final judgment. (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 832 [29 Cal.Rptr.2d 492].)

III. DISCUSSION

Appellants contend that the trial court erred in denying their petition for writ of mandate for several reasons: (1) the PAMF project as approved is inconsistent with the City’s general plan, since the three Kenney Court single-family residences to be demolished and replaced with a storage and waste management area are located on land that must be used exclusively for single-family detached homes; (2) the EIR’s discussion of general plan conformity is inadequate; (3) the EIR used a legally incorrect traffic baseline for determining the project’s traffic impacts; (4) the EIR is inadequate because it used a hypothetical background traffic noise level instead of existing traffic noise levels to determine traffic noise impacts; and (5) the EIR’s discussion of traffic noise impacts is inadequate.

We will begin our analysis with a brief overview of CEQA and its EIR requirement before addressing each issue and the applicable standard of review.

A. CEQA Overview

“ ‘CEQA [(§ 21000 et seq.)] embodies our state’s policy that “the long-term protection of the environment . . . shall be the guiding criterion in public decisions.” ’ [Citation.] As this court has observed, ‘the overriding purpose of CEQA is to ensure that agencies regulating activities that may affect the quality of the environment give primary consideration to preventing environmental damage. [Citation.]’ [Citation.] Consistent with this strong environmental policy, the CEQA statutes and the Guidelines[] issued by the California Resources Agency to implement CEQA ‘have established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations.’ [Citation.]” Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 687 [46 Cal.Rptr.3d 387] (Save Our Carmel River).)

The first tier of the CEQA process requires an agency to conduct a preliminary review to determine whether CEQA applies to a proposed project. (Guidelines, §§ 15060, 1506T, Save Our Carmel River, supra, 141 Cal.App.4th at p. 687.) “If the initial study shows that there is ‘no substantial evidence that the project or any of its aspects may cause a significant effect on the environment,’ the agency prepares a negative declaration so stating. [Citations.] If the project does not qualify for a negative declaration, the agency must proceed to the third step in the process, full environmental review in an EIR.” (Save Our Carmel River, supra, 141 Cal.App.4th at

p. 688.)

Thus, under CEQA, a public agency must prepare an EIR only with regard to “projects that may have significant environmental effects (§§ 21100, subd. (a), 21151, subd. (a)).” (Communities for a Better Environment, supra, 48 Cal.4th at p. 315.) “The EIR’s function is to ensure that government officials who decide to build or approve a project do so with a full understanding of the environmental consequences and, equally important, that the public is assured that those consequences have been taken into account. [Citation.] For the EIR to serve these goals it must present information in such a manner that the foreseeable impacts of pursuing the project can actually be understood and weighed, and the public must be given an adequate opportunity to comment on that presentation before the decision to go forward is made.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 449-450 [53 Cal.Rptr.3d 821, 150 P.3d 709] (Vineyard).)

Specifically, “ ‘[t]he EIR must describe the proposed project and its environmental setting, state the objectives sought to be achieved, identify and analyze the significant effects on the environment, state how those impacts can be mitigated or avoided, and identify alternatives to the project, among other requirements.’ [Citation.]” (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 979 [99 Cal.Rptr.3d 572].) However, “ ‘ “[technical perfection is not required; the courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure.” ’ [Citations.]” {Ibid.) “Nevertheless, given the key role of the EIR in carrying out CEQA’s requirements, ‘the integrity of the process is dependent on the adequacy of the EIR.’ [Citation.]” (Id. at pp. 979-980.) The burden of showing that the EIR is inadequate is on the party challenging the EIR. (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 626 [91 Cal.Rptr.3d 571].)

B. Consistency with the General Plan

Appellants contend that the city council abused its discretion in determining that the PAMF project’s proposal to demolish three single-family residences on Kenney Court and replace them with a waste management and storage area is consistent with the City’s general plan, since, in appellants’ view, the general plan expressly provides that the Kenney Court property is to be used exclusively for single-family detached homes.

Our evaluation of appellants’ contention is governed by well-established standards. Under the Government Code, every county and city is required to adopt “ ‘a comprehensive, long-term general plan for the physical development of the county or city . . . .’ (Gov. Code, § 65300.) A general plan provides a ‘ “charter for future development” ’ and sets forth a city or county’s fundamental policy decisions about such development. [Citation.] These policies ‘typically reflect a range of competing interests.’ [Citation.] Nevertheless, a city’s land use decisions must be consistent with the policies expressed in the general plan. [Citation.] ‘ “[T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.” [Citation.]’ [Citation.]” (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 815 [65 Cal.Rptr.3d 251] (Friends of Lagoon Valley).)

“ ‘ “An action, program, or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.” [Citation.]’ [Citation.] State law does not require perfect conformity between a proposed project and the applicable general plan .... [Citation.]” (Friends of Lagoon Valley, supra, 154 Cal.App.4th at p. 817.) In other words, “it is nearly, if not absolutely, impossible for a project to be in perfect conformity with each and every policy set forth in the applicable plan. ... It is enough that the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan. [Citations.]” (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1510-1511 [19 Cal.Rptr.3d 1].)

This court addressed the applicable standard of review—abuse of discretion—in Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142 [104 Cal.Rptr.2d 326] (Save Our Peninsula). “When we review an agency’s decision for consistency with its own general plan, we accord great deference to the agency’s determination. This is because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity. [Citation.] Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plan’s policies when applying them, and it has broad discretion to construe its policies in light of the plan’s purposes. [Citations.] A reviewing court’s role ‘is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies.’ [Citation.]” {Ibid.)

We review the agency’s decision regarding consistency with the general plan “directly and are not bound by the trial court’s conclusions. [Citations.]” (Friends of Lagoon Valley, supra, 154 Cal.App.4th at p. 816.) “A city’s findings that the project is consistent with its general plan can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion. [Citation.]” (A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 648 [20 Cal.Rptr.2d 228].) Thus, the party challenging a city’s determination of general plan consistency has the burden to show why, based on all of the evidence in the record, the determination was unreasonable. (California Native Plant Society v. City of Rancho Cordova, supra, 172 Cal.App.4th at p. 639.)

Here, as stated in the City’s resolution No. 389-09, adopted June 23, 2009, the city council determined that the proposed PAMF project is consistent with the land use and transportation policies stated in the City’s general plan. Relevant to this appeal, the city council specifically determined that (1) the project is consistent with the community character goal Cl because “the proposed redevelopment would be designed in accordance with the existing medical office buildings surrounding [the] site”; (2) the project is consistent with neighborhood goal Nl because “[t]he project proposes medical office uses on a site that is located near major roadways . . . and served by regional transit”; and (3) the project “proposes to redevelop existing medical office uses that are not reflected in the City’s General Plan” and is consistent with the land use goal 2.1C, to “allow growth and change in the community which can be served within the capacities of existing and planned facilities.”

We understand appellants to contend that the PAMF project is inconsistent with the City’s general plan because the three single-family residences slated for demolition and replacement with a storage and waste management area are located in an area that the general plan designates as low density residential, which is a designation that, according to appellants, expressly excludes any use other than single-family detached homes.

PAMF and the City respond that appellants have waived their inconsistency argument by failing to set forth all of the evidence pertaining to the City’s finding of consistency with the general plan. They also argue that the low density residential provision in the general plan on which appellants rely is taken out of context “and designed to manufacture an inconsistency without considering the General Plan as a whole.” They further assert that appellants failed either to discuss the City’s extensive findings regarding general plan consistency or to identify any goals, policies, and objectives of the general plan with which the PAMF project is inconsistent.

For several reasons, we determine that appellants have not met their burden to show that the city council abused its discretion in finding that the PAMF project is consistent with the City’s general plan. (Save Our Peninsula, supra, 87 Cal.App.4th at p. 142.)

First, we observe that appellants’ inconsistency argument is based on appendix A to the general plan, “Relationship of General Plan Land Use Categories with Zoning Categories,” which states, “The low density residential sub-category allows 0-7 dwelling units per acre. It is used exclusively for single family detached homes and is implemented by the R-0 and R-l Zoning Districts.” The parties agree that the property where the three single-family residences to be demolished are located (420, 428, and 448 Kenney Court) is designated low density residential. However, the record reflects that the property is currently zoned low-medium density residential with an office/planned development combining district, R-2/0/PD. Appellants do not dispute that the city council decided to maintain the current zoning for the Kenney Court property, which is adjacent to the rest of the PAMF medical campus. Thus, the record does not reflect that the area where the Kenney Court houses are located has been used exclusively for single-family detached houses.

Second, appellants have not provided any authority for the proposition that a statement in an appendix to the general plan regarding the designation of low density residential constitutes a general plan mandate that property designated low density residential must be used exclusively for single-family detached houses. To the contrary, we believe that the low density residential designation in the general plan may be interpreted, at best, to limit land use exclusively to single-family detached houses only where the low density residential designation is, as stated in appendix A, “implemented by the R-0 and R-l Zoning Districts.” As we have discussed, the Kenney Court property was not zoned R-0 or R-l, but instead was zoned R-2/0/PD, low-medium density residential with an office/planned development combining district. Moreover, to the extent the PAMF project’s replacement of three Kenney Court residences with a waste management and storage area is arguably not consistent with the low density residential designation, we reiterate that “[sjtate law does not require perfect conformity between a proposed project and the applicable general plan .... [Citation.]” (Friends of Lagoon Valley, supra, 154 Cal.App.4th at p. 817.)

Appellants have also failed to show that the city council did not consider “ ‘the applicable policies and the extent to which the proposed project conforms with those policies.’ [Citation.]” (Save Our Peninsula, supra, 87 Cal.App.4th at p. 142.) As we have noted, the city council determined, among other things, that the PAMF project was consistent with the City’s general plan with respect to the plan’s community character, neighborhood, and land use goals. Appellants make no showing that the city council’s determination of consistency with respect to these general plan goals was unreasonable. Instead, appellants merely make the conclusory argument that the city council erred by not making any express findings regarding the Kenney Court property. We emphasize that appellants, as the parties challenging a city’s determination of general plan consistency, have the burden to show why, based on all of the evidence in the record, the determination of general plan consistency was unreasonable. (California Native Plant Society v. City of Rancho Cordova, supra, 172 Cal.App.4th at p. 639.) Since appellants did not discuss all of the evidence in the record pertinent to the issue of general plan consistency, appellants failed to meet their burden to show that the determination of general plan consistency was unreasonable.

For these reasons, we find no merit in appellants’ claim that the city council abused its discretion in finding that the PAMF project is consistent with the City’s general plan.

C. Discussion of General Plan Conformity

According to appellants, the CEQA Guidelines (§ 15125, subd. (d)) require an EIR “to address the consistency of a project with the applicable general plan.” In particular, appellants assert that “the EIR had a duty to fully present the issue of general plan consistency of that portion of the project being built on land designated in the City’s general plan as exclusively residential with single family detached homes. It also had a duty to explain this issue in response to the comment received on the issue of general plan consistency.”

The City and PAMF point out that CEQA requires only a discussion of general plan inconsistency. We agree. “ ‘[W]hile there is no requirement that an EIR itself be consistent with the relevant general plan, it must identify and discuss any inconsistencies between a proposed project and the governing general plan. [Citation.]’ [Citation.] ‘Because EIRs are required only to evaluate “any inconsistencies” with plans, no analysis should be required if the project is consistent with the relevant plans. [Citation.]’ [Citation.]” (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 918-919 [98 Cal.Rptr.3d 137] (City of Long Beach).)

Further, the authorities cited by appellants, including section 21091, CEQA Guidelines section 15088, and People v. County of Kern (1974) 39 Cal.App.3d 830, 841-842 [115 Cal.Rptr. 67], do not support their argument that CEQA expressly requires a discussion of general plan consistency and responses to comments regarding general plan consistency.

Section 21091, subdivision (d) provides in pertinent part, “(1) The lead agency shall consider comments it receives on a draft environmental impact report, proposed negative declaration, or proposed mitigated negative declaration if those comments are received within the public review period. [][] (2)(A) With respect to the consideration of comments received on a draft environmental impact report, the lead agency shall evaluate comments on environmental issues that are received from persons who have reviewed the draft and shall prepare a written response pursuant to subparagraph (B). The lead agency may also respond to comments that are received after the close of the public review period. [