California Land Use Blog
Neill Brower
A recent court decision has already changed the way many public agencies evaluate traffic impacts in analysis reports prepared to satisfy the California Environmental Quality Act (“CEQA”). On December 16, 2010, the Sixth District of the California Court of Appeal issued its decision in Sunnyvale West Neighborhood Association v. City of Sunnyvale, invalidating an environmental impact report (EIR) for a major roadway extension project. Sunnyvale should be considered as a logical extension of case law regarding the proper baseline for CEQA analysis and the end of the future baseline scenario as the only basis of a traffic impact analysis.
Prior to Sunnyvale, an accepted practice for traffic impact analysis involved crafting a future baseline scenario, usually based on the anticipated year of project build-out, and evaluating project impacts based on the difference between future conditions with and without project-related traffic. This approach makes intuitive sense, as under very few circumstances would traffic levels and street configurations plus project traffic represent an accurate picture of the project’s ultimate effect on local and regional roadways. The Sunnyvale decision even recognized this.
However, CEQA Guidelines require an evaluation of the effects of a project on “the environment.” Generally, “the environment” means the physical conditions that exist in an area during publication of the Notice of Preparation (NOP) or, if no NOP is published, the time that environmental review began.
Exceptions to this general rule are uncommon, but can occur when: (1) the physical conditions that existed at the time of NOP publication somehow did not represent a normal or typical state; (2) the project involves an expansion of an existing use, such as a mine, with varying levels of operation over time; (3) the project involves a slight change to a previously approved project for which the lead agency had already certified an EIR or other CEQA document; or (4) illegal development has occurred in past, and the lead agency wishes to capture and disclose the impacts of that development in addition to the project. In each case, the document must clearly and explicitly state the reasons for deviating from the general rule, explain the basis for the selection of the baseline used and how that baseline was derived, and provide substantial evidence to support these decisions. Even where an alternative baseline is justified and reasonable, the failure to clearly explain the process for selecting and crafting that baseline can be fatal.
In Sunnyvale, the EIR analyzed the traffic, air quality, and noise impacts of the project against the City’s projected 2020 General Plan build-out, rather than against conditions that actually existed at the project site. The EIR explained the 2020 baseline by stating that the City anticipated completing the project at that time. However, no indication existed that the City could actually complete the project by 2020, or even that the City could complete the project at all. In fact, communications among City staff indicated that no foreseeable funding for the project existed. Consequently, the court ruled that the use of a future baseline was not justified, and that even if it had been, the City failed to support its choice of baseline with substantial evidence in the record.
The lessons? Absent a clear and compelling reason to do otherwise, developers should ensure the lead agency publishes an NOP and pegs the analysis–all of the analysis–to that date. Also, a redeveloper who will use trip credits from the preceding use should carefully consider issuing an NOP while the existing use remains in operation.
In most cases, the traffic impact analysis for a typical development project should compare existing traffic conditions to existing conditions plus project traffic. A second analysis that adds other related projects’ traffic to the existing conditions and project traffic likely remains necessary to evaluate cumulative traffic impacts. Finally, mitigate the most severe impact of the two analyses for each significantly impacted intersection.
Where conditions that exist at publication of the NOP do not represent typical or normal circumstances at a project site or its surroundings, or are likely to change rapidly between the NOP and the time the lead agency would actually consider the project, the developer and lead agency must ensure that the analysis clearly and explicitly sets forth the decision-making process for adopting an alternative baseline.
Neill Brower represents JMBM’s clients in environmental and land use issues, including permitting and regulatory compliance under CEQA, NEPA, CERCLA, RCRA, the Clean Water Act, and the California Fish and Game Code. Prior to his legal career, Neill worked for 10 years managing and preparing a variety of environmental and urban planning documents, including environmental impact reports and statements, archaeological and historic resources technical studies, and natural resources permit applications. He also provided peer review of planning and technical documents. During this time, Neill worked extensively with local and state agencies as clients and as regulators. Contact Neill at NBrower@jmbm.com or 310.712.6833.