Filed 11/19/15 Today’s IV v. Los Angeles County Metropolitan Transp. Authority CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
TODAY'S IV, INC., dba WESTIN B260855
BONAVENTURE HOTEL AND SUITES
(Los Angeles County
Plaintiff and Appellant Super. Ct. No. BS137540)
v.
LOS ANGELES COUNTY ORDER MODIFYING OPINION
METROPOLITAN TRANSPORTATION AND DENYING REHEARING
AUTHORITY, [NO CHANGE IN JUDGMENT]
Defendant and Respondent.
The opinion filed on October 28, 2015, is modified as follows:
On page 33, lines 11-12, delete sentence: “The environmental impact report was
certified on January 20, 2012.”
On page 34, lines 10-11, delete sentence: “As noted, the environmental impact
report was certified on January 20, 2012.”
On page 34, delete the last paragraph:
“We need not address whether the development of post-certification feasibility
evidence can require that an already certified environmental impact report be
recirculated. And we need not decide whether the post-certification development of
aspects of a project’s feasibility may impeach an earlier environmental impact report
certification determination. Here, there is no substantial evidence the lower tunneling
profile raised in the April 26, 2012 order was financially feasible.”
The rehearing petition is denied.
_____________________ ______________________ ______________________
TURNER, P.J. KRIEGLER, J. BAKER, J.
2
Filed 10/28/15 Today’s IV v. Los Angeles County Metropolitan Transp. Authority CA2/5 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
TODAY'S IV, INC., dba WESTIN B260855
BONAVENTURE HOTEL AND SUITES
(Los Angeles County
Plaintiff and Appellant Super. Ct. No. BS137540)
v.
LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION
AUTHORITY,
Defendant and Respondent.
APPEALS from the judgment of the Superior Court of Los Angeles County,
Richard Fruin, Judge. Affirmed in part and dismissed in part.
The Silverstein Law Firm, Robert P. Silverstein and Bradly S. Torgan; Law Office
of Christopher Sutton and Christopher Sutton for Plaintiff and Appellant.
Mark J. Saladino, County Counsel, Mary C. Wickham, Acting County Counsel,
Charles M. Safer, Assistant County Counsel, and Ronald W. Stamm, Principal Deputy
County Counsel; Remy Moose Manley, Whitman F. Manley, Tiffany K. Wright, Jennifer
S. Holman and Jeannie Lee for Defendant and Respondent.
I. INTRODUCTION
Plaintiff, Today’s IV, Inc., operates the Westin Bonaventure Hotel and Suites in
Downtown Los Angeles (the hotel). Defendant, The Los Angeles County Metropolitan
Transit Authority, is undertaking the construction of a subway and three subway stations.
The project is entitled the Regional Connector Transit Connector Project (the project).
The subway will directly link the 7th Street/Metro Center to the Gold Line light-rail
system in the Little Tokyo section of Downtown Los Angeles.
Because of partial federal funding for the project, the Federal Transit
Administration was required to conduct environmental review pursuant to the National
Environmental Policy Act. (42 U.S.C. § 4321 et seq.) Apart from a dispute concerning
public record disclosure, plaintiff’s challenges arise under the California Environmental
Quality Act. (Pub. Resources Code1, § 21000 et seq.) Under these circumstances, an
environmental impact report/environmental impact study must be jointly prepared by
federal and local authorities. (Environmental Protection Information Center v. California
Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 472; Cal. Code of Regs., tit.
14, § 15220 et seq. (Guidelines2).) For clarity’s sake, the final environmental impact
report/environmental impact study will be referred to as the environmental impact report.
Plaintiff appeals from the judgment upholding defendant’s certification of the
environmental impact report and denying a California Public Records Act (Public
Records Act) request. (Gov. Code, § 6250 et seq.) We shall review the environmental
impact report only for violations of the California Environmental Quality Act although it
was jointly prepared with federal authorities. Defendant contends in its cross-appeal that
1 All further statutory references are to the Public Resources Code unless otherwise
indicated.
2 References to Guidelines are to those located in California Code of Regulations,
title 14, section 15000 et seq. The Guidelines are promulgated by the California Natural
Resources Agency to implement the California Environmental Quality Act. (§ 21083,
subd. (e); Neighbors for Smart Rail v. Exposition Metro Line Construction Authority
(2013) 57 Cal.4th 439, 448, fn. 4.)
2
the project is exempt from environmental review. We conclude the trial court correctly
ruled defendant could properly certify the environmental impact report as it relates to
plaintiff. We further conclude plaintiff may not challenge the trial court’s adverse
decision in the Public Records Act dispute on direct appeal. Because we affirm the
judgment, this disposition obviates the need to address defendant’s cross-appeal. We
therefore dismiss defendant’s cross-appeal as moot.
II. PLAINTIFF’S CHALLENGES TO CERTIFICATION OF THE
ENVIRONMENTAL IMPACT REPORT AND PUBLIC RECORDS ACT
ALLEGATIONS
A. Plaintiff’s Verified Mandate Petition and Injunctive Relief Complaint
On May 25, 2012, plaintiff filed its verified mandate petition and injunctive relief
complaint. According to the petition and complaint, the hotel consists of 1,354 guest
rooms and suites, convention and other facilities and numerous restaurants. The hotel
occupies the entire city block bounded by Figueroa Avenue and Fourth, Fifth and Flower
Streets. Vehicle access into the hotel’s underground parking lot is available only by
means of a single driveway from Flower Street.
The first cause of action seeks issuance of a writ of mandate because defendant
violated the Public Records Act. According to the first cause of action, defendant
improperly asserted exemptions for disclosure of public records and failed to produce the
“Flower Street Tunneling Study” in response to plaintiff’s request. The remainder of
plaintiff’s claims relate to the California Environmental Quality Act.
The second through fifth causes of action seek issuance of a writ of mandate
because the environmental impact report does not comply with specified California
Environmental Quality Act provisions. In the second cause of action, plaintiff alleges the
environmental impact report fails to support ecological conclusions concerning the
following: baseline of geotechnical conditions within and around the hotel structures that
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will be impacted by vibration and excavation activities; vehicular access and egress;
disability access; emergency access, evacuation and human safety; temporary
construction easements; noise; the exclusion of a tunnel boring machine from portions of
the financial district; financial detriments; and grade separation on Flower Street that will
result from the use of “cut and cover” construction method.
The third cause of action alleges the environmental impact report fails to adopt
feasible mitigation measures or alternatives. According to the mandate petition and
injunctive relief complaint, the cut and cover construction method will result in numerous
significant impacts which are described in the second cause of action. In connection with
the cut and cover construction method, plaintiff alleges defendant failed to adopt a
feasible alternative that would have far less serious environmental impacts. Plaintiff
alleges: “[Defendant] did not adopt an alternative to the ‘cut and cover’ construction
method even though feasible alternatives exist which would result in far less severe
environmental impacts, including but not limited to the [tunnel boring machine] method.
There is no substantial evidence in the record supporting a conclusion that use of the
[tunnel boring machine] method is infeasible in the Financial District or supporting
compelling overriding considerations to support [defendant’s] decision not to revise this
aspect of the [p]roject in the Financial District when it made such a modification for the
Little Tokyo area and in the Financial District between [Third] and [Fourth] Streets, but
not further along Flower Street.”
In addition, in the third cause of action, plaintiff alleges the mitigation measures
for certain of the problems identified in the second cause of action are predicated on
studies that will occur in the future. The second cause of action alleges: “The
[environmental impact report] offers only improperly deferred mitigation in violation of
[the California Environmental Quality Act]. By contrast to such vague assurances of
possible future action, [the California Environmental Quality Act] requires that the
[environmental impact report] provide specific mitigation measures to address these
impacts not only to ensure that the level of impact will indeed be reduced to a less than
significant level, but also to determine whether the mitigation, itself, creates any other
4
impacts that must in turn be addressed. [Defendant] failed to comply with this
requirement.”
The fourth cause of action alleges that there were significant changes in the
environmental impact report which required its recirculation. Presumably, plaintiff is
alleging the changes to project required recirculation of the environmental impact report.
Plaintiff identifies two significant changes to the draft and final environmental impact
reports which warranted recirculation of the environmental impact report. To begin with,
the project uses a tunnel boring machine to construct a tunnel from the Little Tokyo area
towards Fourth and Flower Streets. Then the project utilizes the cut and cover technique
on Flower Street between Third and Fourth Streets. (We will explain shortly the with
greater precision where the tunnel boring machine and cut and cover construction
methods are to be utilized.) Plaintiff asserts there will be a grade separation on Flower
Street during construction by as much as 24 inches. In the second cause of action,
plaintiff alleges this grade separation will foreseeably result in significant impacts on
traffic in the Financial District including access to freeways and other properties. In the
fourth cause of action, according to plaintiff, the grade separation issue arose after the
circulation of the draft and supplemental environmental impact reports. Thus, before
certification of the environmental impact report, the document should have been
recirculated to allow public comment on the grade separation impact issue.
The fifth cause of action alleges that the environmental impact report fails to
consider future planned construction. According to plaintiff, there is a planned station to
be built in the Financial District, but only in the future. This planned station is
“admittedly still part of the[p]roject” although its future construction is dependent upon
the availability of financing. Therefore, plaintiff alleges, “[Defendant’s] failure to fully
analyze the [new s]tation in the [environmental impact report] as part of the [p]roject
constitutes improper piecemealing in violation of [the California Environmental Quality
Act].” In the sixth cause of action, plaintiff seeks injunctive relief to maintain the status
quo and to enjoin defendant from proceeding with the project until there is an opportunity
for full judicial review. In its answer, defendant denies generally all the material
5
allegations of the petition and complaint. In addition, defendant asserts 13 affirmative
defenses, including exemption from the requirements of the California Environmental
Quality Act.
Plaintiff’s motion for a preliminary injunction was denied. Later, the petition was
denied. Judgment was entered in defendant’s favor on all of plaintiff’s claims in the
petition and complaint.
B. Challenges on Appeal
Plaintiff presents the following six challenges to defendant’s certification of the
environmental impact report. First, defendant decided to use cut-and-cover construction
along Flower Street south of Fourth Street to 7th Street/Metro Center. The parties refer
to the area just south of the hotel Lower Flower Street. This determination was made
without first analyzing the alternative feasible construction methods of closed-face and
open-face tunneling. Second, the environmental impact report improperly defers analysis
of geotechnical impacts and formulation of mitigation measures for the resulting adverse
ecological effects. Third, the environmental impact report’s analysis of vehicular ingress
and egress impacts is insufficient. Fourth, the environmental impact report fails to
contain any analysis of the impacts resulting from the potential grade separation of up to
24 inches. According to plaintiff, the present street grade will be increased up to 24
inches higher as a result of the project. Fifth, the environmental impact report fails to
analyze the full scope and duration of both the noise and the illumination and glare
impacts from nighttime construction. Sixth, defendant failed to re-circulate the
environmental impact report in view of significant new impacts. Additionally, plaintiff
contends the judgment must be reversed, because it prevailed on its Public Records Act
claim.
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III. PLAINTIFF’S APPEAL
A. Feasible Construction Methods
1. Plaintiff’s argument
Plaintiff contends the environmental impact report fails to analyze the use of
tunnel boring machine technology to construct the subway under Flower Street to the
south of Fourth Street. According to plaintiff, open-face tunneling construction methods
are actually or potentially feasible alternatives to the cut-and-cover construction method
called for by the environmental impact report. However, there is substantial evidence the
closed- and open-face tunneling boring machine methods are not feasible alternatives to
the cut and cover technique.
2. Standard of review
The gravamen of plaintiff’s position is the environmental impact report fails to
meet statutory requirements for good-faith investigation and disclosure of the projects
adverse ecological effects. An environmental impact report’s fundamental purpose is to
inform public officials and the people they serve of any significant adverse effects a
project is likely to have on the environment. (§ 21061; Neighbors for Smart Rail v.
Exposition Metro Line Const. Authority, supra, 57 Cal.4th at p.; Vineyard Area Citizens
for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428.)
We presume the correctness of defendant’s decisions in the environmental impact report
context. (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1,
11; State Water Resources Control Board Cases (2006) 136 Cal.App.4th 674, 723.) Our
Supreme Court describes the limited nature of our review: “In reviewing agency actions
under [the California Environmental Quality Act], . . . section 21168.5 provides that a
court’s inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.
7
Abuse of discretion is established if the agency has not proceeded in a manner required
by law or if the determination or decision is not supported by substantial evidence.’”
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; see Mount
Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184,
195.)
Thus, our standard of review depends upon the nature of the challenge to an
environmental impact report: “In evaluating an [environmental impact report] for
[California Environmental Quality Act] compliance, then, a reviewing court must adjust
its scrutiny to the nature of the alleged defect, depending on whether the claim is
predominantly one of improper procedure or a dispute over the facts. For example,
where an agency failed to require an applicant to provide certain information mandated
by [the California Environmental Quality Act] and to include that information in its
environmental analysis, we held the agency ‘failed to proceed in the manner prescribed
by [the California Environmental Quality Act].’ (Sierra Club v. State Bd. of Forestry
(1994) 7 Cal.4th 1215, 1236; see also Santiago County Water Dist. v. County of Orange
[(1981)] 118 Cal.App.3d [818], 829 [[environmental impact report] legally inadequate
because of lack of water supply and facilities analysis].) In contrast, in a factual dispute
over ‘whether adverse effects have been mitigated or could be better mitigated’ (Laurel
Heights [Improvement Assn. v. Regents of University of California (1988) ] 47 Cal.3d
[376,] 393), the agency’s conclusion would be reviewed only for substantial evidence.”
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra,
40 Cal.4th at p. 435.) The gravamen of all plaintiff’s contentions concerning feasible
construction methods and mitigation measures pertain to its factual disagreements with
the environmental impact report’s conclusions. Thus, our standard of review as to
defendant’s environmental conclusions is for substantial evidence.
In terms of the correctness of defendant’s environmental conclusions, our
Supreme Court has explained: “Thus, the reviewing court ‘“does not pass upon the
correctness of the [environmental impact report’s] environmental conclusions, but only
upon its sufficiency as an informative document.”’ [Citations.] We may not set aside an
8
agency’s approval of an [environmental impact report] on the ground that an opposite
conclusion would have been equally or more reasonable.” (Citizens of Goleta Valley v.
Board of Supervisors, supra, 52 Cal.3d at p. 564, quoting Laurel Heights Improvement
Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392 and County of
Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) In a similar vein, our
Supreme Court has explained: “‘A court’s task is not to weigh conflicting evidence and
determine who has the better argument when the dispute is whether adverse effects have
been mitigated or could be better mitigated. We have neither the resources nor scientific
expertise to engage in such analysis, even if the statutorily prescribed standard of review
permitted us to do so.’” (Western States Petroleum Assn. v. Superior Court (1995) 9
Cal.4th 559, 574 citing Laurel Heights Improvement Assn. v. Regents of University of
California, supra, 47 Cal.3d at p. 393.) Therefore, we defer to defendant’s resolution of
conflicting engineering opinions and evidence. (Western States Petroleum Assn. v.
Superior Court, supra, 9 Cal.4th at p. 574; accord Environmental Council of Sacramento
v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1042.) The foregoing standard of
review applies to all of plaintiff’s environmental impact arguments except for the deferral
and recirculation contentions.
3. The setting
The project consists of a 1.9 mile subway as part of defendant’s light rail and
subway system and attendant three new underground rail stations. The subway will run
from the 7th Street/Metro Station under Flower Street essentially northeast to the new
2nd Street/Hope Station. The subway will then move in an easterly direction from the
new 2nd Street/Hope Station east to the new 2nd Street/Broadway Station. The subway
would terminate at the new 1st Street/Central Station in Little Tokyo.
Plaintiff challenges the use of the cut-and-cover method for construction of the
project along the portion of Flower Street facing the hotel’s east exterior. This segment
of Flower Street runs from Fourth Street to just past Fifth Street. As we will explain, the
9
setting for this dispute involves the use of the cut and cover method on Flower Street to
construct the subway which will proceed southbound from the hotel to the 7th
Street/Metro Station.
4. The environmental impact report’s construction method determinations
On September 3, 2010, defendant published the draft environmental impact report.
The draft environmental impact report contemplates the use of the cut and cover
technique for constructing the subway. According to the draft environmental impact
report, the cut and cover technique would be used southbound between 2nd/Hope Street
Station and 7th Street/Metro Station. Thus, the draft environmental impact report
recommends use of the cut and cover technique between Flower Street immediately
facing the hotel’s east exterior to the 7th Street/Metro Station. The cut and cover
technique of constructing a subway is described as follows in the draft environmental
impact report: “This is a very common construction method for underground facilities
and it entails excavating down from the ground surface. A temporary excavation support
is provided to stabilize the ground and excavation is carried out inside the supported area.
Temporary concrete decking can be placed over the cut immediately following the first
lift of excavation (at about 12 to 15 feet below ground surface) to allow traffic to pass
above. Once the deck is in place, excavation and internal bracing would continue to the
required depth. Once the desired construction is completed inside the excavated area, the
excavation is backfilled and the surface is restored permanently.”
After the draft environmental impact report was circulated, defendant’s directors
board adopted a different version of the project. The October 28, 2010 version of the
project eliminates the 5th/Flower Station contemplated by the draft environmental impact
report. The October 28, 2010 version of the project calls for a fully underground subway.
A supplemental environmental impact report was prepared and circulated for public
comment on July 22, 2011. The project was modified by substituting the tunnel boring
machine method for the cut-and-cover method for the construction commencing near
10
Second Street in Little Tokyo. The cut and cover method was replaced by the tunnel
boring machine technique of subway construction all the way on Flower Street from
Second to Fourth Streets. The supplemental environmental impact report discusses the
use of a tunnel boring machine to construct the subway tunnels thusly: “[Tunnel boring
machines] are large-diameter, horizontal drills that predominantly excavate circular
tunnel sections. The excavated materials are removed through the tunnel using hopper
type rail cars or by a conveyor system. As the machine advances, both the ground in
front of the machine and the hole it creates are continually supported by the machine
shield and pre-cast concrete tunnel liners. This method creates a tunnel with little or no
disruption at the surface that is especially suitable for creating a circular opening at
greater depths than would be practical for cut and cover construction. When the concrete
tunnel liner has rubber gaskets between each segment, water is prevented from entering
the tunnel and excavation can proceed below the ground water level.” The use of the
tunnel boring machine is to stop at Fourth Street. The use of the cut and cover technique
is to be utilized southbound on Flower Street from Fourth Street to the 7th Street/Metro
Station. Both the draft and supplemental environmental impact reports contemplate the
cut and cover construction technique will be utilized southbound on Flower Street all the
way to the 7th Street/Metro Station.
If feasible, defendant employs the tunnel boring machine method because “tunnel
boring is far less disruptive to surface traffic and adjacent land uses” than the cut-and-
cover method. This method uses “large-diameter horizontal drills that continuously
excavate circular” tunnel sections. The use of earth-pressure balance machines, a type of
tunnel boring machine with a closed-face pressurized cutting head, is defendant’s
preferred tunnel construction method. Where the tunnel boring machine is used, the
closed-face pressurized cutting head method was the one selected for the project.
But the environmental impact report concludes that use of a tunnel boring machine
south of Fourth Street is infeasible. The following discussion concerning the infeasibility
of using a tunnel boring machine is based on the analysis prepared prior to the
environmental impact report’s certification. The environmental impact report found the
11
presence of tiebacks in the planned subway route on Flower Street south of Fourth Street
makes use of a tunnel boring machine infeasible. The environmental impact report
describes a tie-back: “Tiebacks consist of horizontal or inclined wire strands or steel rods
installed in drilled holes in the ground behind the wall. One end of the tieback is secured
to the wall and the other end is anchored to stable ground to provide sufficient resistance
and to limit ground movement.” The environmental impact report discusses the tie-back
issue as it relates to the use of the tunnel boring machine technology: “Many of the
existing structures adjacent to the alignment have underground basements that utilized
temporary shoring and tieback systems during their original construction. The tiebacks
were typically left in place and decommissioned after basement construction, in general
accordance with local practice in the City of Los Angeles and southern California. These
abandoned/decommissioned tiebacks could be encountered under many parts of Flower
Street since the existing deep basement/parking garage used tiebacks to support the
original excavations during construction. Steel tieback cables could pose a problem for
tunnel boring machines. The cut and cover method provides greater flexibility and the
ability to overcome underground obstructions more easily than the [tunnel boring
machine] method. These obstructions would potentially be problematic for [tunnel
boring machine] excavation on Flower Street due to the shallow depths of the tunnels,
which is partly why cut and cover construction is planned for this area.”
Also, in response to comments after circulation of the supplemental environmental
impact report, defendant explains: “Flower Street from 4th Street to the existing tracks
just south of 6th Street is highly constrained with existing subsurface tie-backs from
previous construction projects that interfere with tunneling activity. Tunneling activities
using a tunnel boring machine south of 4th Street are hindered as existing tie-backs are
encountered. Each time a tie-back is encountered, tunneling would halt in order to allow
the tie-back to be removed. This constraint renders tunnel boring machine construction
not practicable in this area.” Under Flower Street south of Fourth Street there are 403
known tie-backs that must be cut. Tiebacks will be encountered by a tunnel boring
machine every seven feet. There are 212 total tiebacks on the west side of Flower Street.
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There are 191 total tie backs on the east side of Flower Street. Thus, the environmental
impact report concludes that beginning at the intersection of Flower and Fourth Streets,
the cut and cover technique will be used to construct the subway.
5. Substantial evidence supports defendant’s conclusion that use of the tunnel boring
machine south of Fourth Street is infeasible
Substantial evidence supports the environmental impact report’s finding that the
use of a tunnel boring machine south of Fourth Street is infeasible. Attached to the draft
environmental impact report is the technical memorandum entitled, “Alternate Study:
More Tunneling on Flower Street.” The study, prepared by the Connector Partnership,
concludes: “In an ideal situation, tunneling under Flower Street would result in less
disruption to traffic and business access compared to cut and cover construction. Very
significant and tacitly fatal flaws exist for tunneling (several site conditions and rail
system requirements) and make tunneling under Flower Street not an acceptable method
of construction.” The study identifies the hazards of the presence of tiebacks underneath
on Flower Street as one of the factors that makes the use of a tunnel boring machine
infeasible. An updated Connector Partnership technical study identifies the presence of
tie-backs coming from what was formerly known as the ARCO Plaza to under Flower
Street. Documents developed during the design phase of the project identify tiebacks
emanating from: the hotel; the Citicorp parking structure; the library parking structure;
and the City National Bank building.
The Draft Baseline Geotechnical Report prepared by the Connector Partnership
explains why the cut and cover technique should be used, “This method of construction
was selected because of anticipated conflicts with hundreds of existing foundation tie-
back anchors along this part of the alignment and considering the relatively shallow
excavation depth.” The Connector Partnership’s draft technical report on the design and
construction of the subway on Flower Street states: “In either the tensioned or
untensioned state, tiebacks are a hazard to closed-face (pressurized face) [tunnel boring
13
machine] tunneling as the cutter head will be entangled in the works and can damage the
[tunnel boring machine] and create excessive ground loss. The [tunnel boring machine]
is not capable of ‘chewing-up’ or otherwise processing a steel tieback. Substantial down
time is required to go ahead (in front) of the cutterhead to manually remove a tie[-]back.”
The Connector Partnership’s draft technical report on the design and construction of the
Flower Street subway continues: “Removal of tiebacks in advance of tunneling is
theoretically possible to avoid the tieback hazard. In practice, the location of tiebacks
needs to be identified. However, as-built records may not be available or not reliably
documented for such temporary works. The risk of not finding and removing all the
tiebacks remain. Geophysical techniques, such as a magnetometer, might be able to find
some tiebacks, but if used in drill holes, would be like ‘looking for a needle in a
haystack.’ A geophysical method at the ground surface is not known to exist that can
simply find the tiebacks at depths of possibly 40 to 80 feet below the ground surface.
The only practical direct method to remove the number of [tie backs] would require an
independent trench excavation with ground support . . . to explore, cut, and remove
tiebacks. The task of digging trenches along Flower [Street] . . . would have similar
impacts to Flower Street as the tunnel cut and cover . . . methods, including . . . traffic
and pedestrian disruption and . . . utility relocations.”
Thus, substantial evidence supports the environmental impact report’s finding that
use of an open or closed face tunnel boring machine south of Fourth Street under Flower
Street is infeasible. That there are conflicts in evidence emanating from defendant,
including its own equivocal findings, does not permit us to set aside the certification of
the environmental impact report. (Western States Petroleum Assn. v. Superior Court,
supra, 9 Cal.4th at p. 572; accord Environmental Council of Sacramento v. City of
Sacramento, supra, 142 Cal.App.4th at p. 1042.) Additionally, we need not address other
grounds for findings of infeasibility including: the presence of groundwater; problems
resulting from utilities; and the shallow depth of the 7th Street/Metro Station.
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B. Alleged Improper Analysis of Geotechnical Impacts on Structures Within The
Construction Zone and Deferral of Mitigation Measure Formulation
1. Baseline
Plaintiff argues there is an insufficient discussion of the physical baseline
conditions in the project area. The environmental impact report must identify baseline
conditions. Our Supreme Court has explained: “The fundamental goal of an
[environmental impact report] is to inform decision makers and the public of any
significant adverse effects a project is likely to have on the physical environment.
(§ 21061; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova[, supra,] 40 Cal.4th [at p.] 428.) To make such an assessment, an
[environmental impact report] must delineate environmental conditions prevailing absent
the project, defining a ‘baseline’ against which predicted effects can be described and
quantified. (Communities for a Better Environment v. South Coast Air Quality
Management Dist. (2010) 48 Cal.4th 310, 315.)” (Neighbors for Smart Rail v. Exposition
Metro Line Const. Authority, supra, 57 Cal.4th at p. 447.)
Contrary to plaintiff’s contention, the environmental impact report
comprehensively discusses the baseline conditions as it relates to geotechnical issues.
Appendix U, a technical memorandum, was prepared by the Los Angeles consulting firm
of Camp Dresser & McKee, Inc. which is commonly referred to as CDM. The senior
project manager for CDM was Virginia Jackson who had over 25 years experience
working on transportation matters. CDM began environmental and engineering work on
the project in July 2007. Appendix U discusses: the potential for adverse impacts related
to liquefaction or seismically induced settlement; the absence any potential for adverse
impacts related to fault rupture and other geological events; and a comprehensive
evaluation methodology to be used in assessing geotechnical analysis. Appendix U sets
forth: the regional geology; faulting and seismicity; current and potentially active faults
and their distance from the project; and blind thrust fault zones. Appendix U explains
15
that tunneling has the potential for adverse impacts related to ground settlement and
differential settlement immediately above the alignment. Finally, Appendix U concludes
that with mitigation, potential impacts would be less than significant in connection with:
ground loss due to tunnel construction; liquefaction; presence of subsurface gases; and
hazardous materials in the project area. In terms of baseline geological conditions, the
environmental impact report complies with the requirement it inform public officials of
the existing environment. (See Fall River Wild Trout Foundation v. County of Shasta
(1999) 70 Cal.App.4th 482, 492; Kings County Farm Bureau v. City of Hanford (1990)
221 Cal.App.3d 692, 712.)
2. Mitigation measure issues
The environmental impact report concludes that the project has the potential for
adverse effects related to: liquefaction; seismically-induce settlement; ground loss due to
tunnel construction; and landslides. The environmental impact report identifies 21
mitigation measures. In terms of plaintiff’s improper deferral contention, mitigation
measure GT-1 states: “Before any construction, a survey of structures within the
anticipated zone of construction influence shall be conducted in order to establish
baseline conditions. A geotechnical instrumentation and settlement monitoring plan and
mitigation measures shall be developed and adhered to during construction to ensure
appropriate measures are taken to address any construction-induced movement. If
assessments indicate the necessity to proactively protect nearby structures, additional
support for the structures by underpinning or other ground improvement techniques shall
be required prior to the underground construction. [Defendant] shall require the
construction contractor to limit movement to less than acceptable threshold values for
vertical, horizontal, and angular deformation as a performance standard. These
acceptable threshold values shall be established such that the risk of damage to buildings
and utilities will be negligible to very slight. For buildings, these threshold values will be
based on the relationship of building damage to angular distortion and horizontal strain
16
consistent with Boscardin and Cording (1989) and qualitative factors including but not
limited to the type of structure and its existing condition. For utility mains, these
threshold values shall be those established by the utility owners. Additional data and
survey information shall be gathered during final design for each building and utility
main to enable assessment of the tolerance of potentially affected structures and utilities.
Additional engineering and design level geotechnical studies shall be performed to define
the nature of the soils and to refine the means of achieving each performance
specification. (GT-1)” Other geotechnical and subsidence mitigation measures include:
GT-2, ground improvement methods; GT-3, tunnel alignment grouted in advance; GT-4,
monitoring devices along the route; and GT-5, use of particular machinery. The
environmental impact report concludes, “With mitigation, potential effects related to
geologic, subsurface, or seismic hazards would be reduced to a less than significant
level.”
Taken together, as demonstrated below, there is substantial evidence these
mitigation measures are sufficient to reduce the subsidence risks to less than significant
levels. (See Friends of Kings River v. County of Fresno (2014) 232 Cal.App.4th 105, 123
[three related mitigation measures considered together].) Appendix U to the
environmental impact report consists of a technical memorandum on geotechnical,
subsurface, seismic and hazardous materials. The technical memorandum was prepared
by CDM.
The technical memorandum evaluates impacts associated with the project area’s
geological conditions and concludes the proposed tunneling would give rise to potential
adverse subsidence impacts. The technical memorandum recommends certain measures
to mitigate against potential subsidence: a preconstruction study; construction
monitoring; and limiting potential settlement to below an acceptable threshold value
established during the final project design. These enumerated mitigation strategies are
included as part of mitigation measure GT-1. As noted, other proposed mitigation
approaches are reflected in mitigation measures GT-2 through GT-5.
17
The February 3, 2012 final draft of the Building and Adjacent Structure Protection
Report prepared by the Connector Partnership indicates, “As soon as any of the above
buildings show a settlement value greater than 0.25 inches, compensation grouting will
be activated under the building in order to counteract the settlement developing under it.”
Compensation grouting was described as an effective structure protection and settlement
mitigation method. The report concludes that by applying grout to a settlement of 0.25
inches, the damage would be negligible.
The April 2012 technical memorandum prepared by Ray Sosa and Bill Hansmith
explains the use of the Boscardin and Cording method, which predicts potential damage
to various structures. This technique was used to evaluate tunneling impacts on buildings
adjacent to the alignment as required by mitigation measure GT-1. This method has
gained worldwide acceptance in engineering practice. Further, by using compensation
grouting, “[T]he settlement under these buildings could be controlled to acceptable
levels.” Substantial evidence supports defendant’s less than significant impact findings
after implementation of the potential subsistence mitigation measures. As with other
issues, plaintiff’s remaining subsidence contentions amount to an unpersuasive effort to
have us reassess conflicting engineering opinions; something we are prohibited from
doing. (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 572;
Environmental Council of Sacramento v. City of Sacramento, supra, 142 Cal.App.4th at
p. 1042.)
Further, there is no merit to plaintiff’s deferral argument. Plaintiff relies on
Guidelines, section 15126.4, subdivision (a)(1)(B) which provides in part: “Formulation
of mitigation measures should not be deferred until some future time. However,
measures may specify performance standards which would mitigate the significant effect
of the project and which may be accomplished in more than one specified way.” Plaintiff
is correct that environmental planning documents which merely defer formulation of
mitigation measures may fail to comply with Guidelines section 15126.4, subdivision
(a)(1)(B). (1 Kostka & Zischke Practice Under the California Environmental Quality Act
18
(Cont.Ed.Bar 2015) § 14.12, p. 14-14 to 14-15; Preserve Wild Santee v. City of Santee
(2012) 210 Cal.App.4th 260, 281.)
In POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 735-738,
the Fifth Appellate District Court of Appeal reviewed prior decisions allowing for
deferred formulation of mitigation measures. After analyzing those cases, our Fifth
District colleagues concluded: “The foregoing cases demonstrate that the exception
allowing the deferral of the formulation of mitigation measures has been expressed in a
variety of ways. From these cases, we glean two principles that are important to this
case. First, the deferral of the formulation of mitigation measures requires the agency to
commit itself to specific performance criteria for evaluating the efficacy of the measures
implemented. Second, the ‘activity’ constituting the [California Environmental Quality
Act] project may not be undertaken without mitigation measures being in place ‘to
minimize any significant adverse effect on the environment of the activity.’ (§ 21080.5,
subd. (d)(3)(A).) In other words, the deferral relates only to the formulation of mitigation
measures, not the mitigation itself. Once the project reaches the point where activity will
have a significant adverse effect on the environment, the mitigation measures must be in
place.” (POET, LLC v. State Air Resources Bd., supra, 218 Cal.App.4th at pp. 737-738;
see 1 Kostka & Zischke, op. cit., § 14.12, pp. 14-14 to 14-15.) Here, as noted above,
specific performance criteria have been imposed by the mitigation measures. The April
2012 technical memorandum prepared by Mr. Sosa and Mr. Hansmith describes the
Boscardin and Cording method, which predicts potential structural damage, as having
received worldwide acceptance.
And decisional authority recognizes it is proper to defer formulation of
geotechnical mitigation measures: “These mitigation measures appear to us to fall
squarely within the rule of [California Native Plant Society] that ‘when a public agency
has evaluated the potentially significant impacts of a project and has identified measures
that will mitigate those impacts,’ and has committed to mitigating those impacts, the
agency may defer precisely how mitigation will be achieved under the identified
measures pending further study. [(California Native Plant Society v. City of Rancho
19
Córdova (2009) 172 Cal.App.4th 603, 621.)] The Building Code and City regulations
require investigation and recommendations to avoid seismic hazards; in fact, under City
ordinances, a registered civil engineer is required to recommend corrective action that is
‘likely to prevent structural damage to each structure.’ (Italics added.) The
[environmental impact report] and the Geotechnical Investigation provide evidence that
mitigation is feasible and discuss a range of mitigation measures, including the
Geotechnical Investigation’s recommendation of the use of deep foundation systems, as
well as requirements for piles, site grading requirements, and seismic design
requirements for structural designs, all of which the Revised [environmental impact
group] reported were standard, accepted, and proven engineering practices. In addition,
Mitigation Measure F.2 lists further possible methods to reduce the risk of liquefaction.
Finally, the mitigation measures required compliance with all geotechnical mitigations
contained in the site-specific geotechnical investigations in the plans submitted for all
relevant construction permits. As in Gentry, the plans are ‘subject to a host of specific
performance criteria imposed by various ordinances, codes, and standards, as well as
other mitigation conditions.’ (Gentry [v. City of Murrieta (1995)] 36 Cal.App.4th [1359,]
1395.) It is reasonable to expect that these environmental regulations will be followed.
(See Sundstrom [v. County of Mendocino (1998)] 202 Cal.App.3d [296,] 308-309.)”
(Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 910.)
Therefore, no improper deferral of preparation of mitigation measures has occurred.
C. Vehicular Ingress and Egress Impacts
Plaintiff contends the environmental impact report’s analysis of vehicular ingress
and egress impacts is insufficient. Substantial evidence supports the adequacy of
vehicular ingress and egress impacts analysis including the effectiveness of the mitigation
measures. In a response during the public comment period, defendant stated: “It may not
be possible to keep all vehicular entrances to garages open at all times during operating
hours. But [defendant] would ensure that access is provided via other vehicular entrances
20
during those times as part of its goal to maintain access to businesses.” Plaintiff asserts
in light of this statement, the environmental impact report was required to identify
additional mitigation measures. According to plaintiff, these mitigation measures must
apply when construction blocks vehicular access to the hotel, which has only a single
entrance and exit for vehicles.
To begin with, defendant argues this entire issue has been forfeited. Defendant
argues the opening brief fails to identify any of the mitigation measures designed to
mitigate to insignificant levels traffic and access issues. We agree the issue has been
forfeited. The opening brief does not objectively identify many of the numerous steps
defendant is obligated to undertake in order to mitigate the traffic and access issues.
Further, the opening brief incorrectly claims there is “no” mitigation designed to
ameliorate construction related impacts. Thus, the failure to objectively discuss the
mitigation measures forfeits the traffic and access issues. (Cal. Rules of Court, rule 8.204
(a)(2)(C); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Myers v.
Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739; Defend the Bay v. City of
Irvine (2004) 119 Cal.App.4th 1261, 1265-1266.)
Nonetheless, the environmental impact report discusses baseline conditions and
potential adverse access and traffic issues. Among the matters identified in the Safety
and Security technical memorandum prepared by CDM, which is Appendix CC to the
environmental impact report, are: existing roadways near the hotel; existing crime
statistics and safety related events near the hotel; the effect of construction on the speedy
first responder access to emergencies; pedestrian safety; and the increased risk of traffic
accidents during construction. The environmental impact report concludes the
cumulative impacts will be mitigated to less than a significant level. Further, the draft
environmental impact report discusses potential construction mitigation measures
including: alternate walkways to comply with the Americans with Disabilities Act;
marking pedestrian detour locations around construction sites; coordinating work and
traffic control measures; and the development of a construction mitigation plan during the
21
final design phase. The environmental impact report thus identified circumstances which
can give rise to adverse impacts.
In any event, defendant is obligated by the terms of various mitigation measures to
maintain safe 24-hour access to the hotel. The mitigation measures in the environmental
impact report sets forth defendant’s obligation to ensure no such blockage occurs.
Mitigation measure SS-15 requires: “[Defendant] shall keep sidewalks, entrances to
buildings, lobbies, corridors, aisles, doors, or exists that remain in use by the public clear
of obstructions. [Defendant] shall post appropriate warnings, signs, and instructional
safety signs. These requirements shall be included in the construction specifications.” In
response to public comments, the extent of mitigation measure SS-15 was explained:
“[Defendant] would keep entrances and exits clear of obstructions, and would ensure that
adequate exit routes and safe zones are maintained at all times during construction, as
indicated in Section 4.15.4.2.1 of this [environmental impact report] and mitigation
measure number SS-15 in the Mitigation Monitoring and Reporting Program for the
Locally Preferred Alternative (Chapter 8 of this [environmental impact report]).
[Defendant] would not allow construction activities to impede safe evacuation of the
buildings at any time.”
Mitigation measure TR-1 requires, “Access to adjacent businesses shall be
maintained via existing or temporary driveways at all times during business hours, and to
residences at all times.” In response to public comments, defendant explained the extent
of mitigation measure TR-1: “As stated in Section 3.4.1.4 of the [draft environmental
impact report], Section 3.4.2 of this [environmental impact report], and mitigation
measure number TR-1 in the Mitigation Monitoring and Reporting Program for the
Locally Preferred Alternative (Chapter 8 of this [environmental impact report]), access to
businesses would be maintained during business operating hours throughout construction.
This includes late-night businesses such as the 24-hour gym.” At another point while
responding to public comments, defendant emphasizes that it is obligated to maintain
“access” to 24-hour businesses.
22
Further, construction on the hotel’s Flower Street side is subject to regulations
imposed by: the fire and police departments and other first responding agencies; the
requirements of the Americans with Disabilities Act; and the requirements of the
Architectural Barriers Act. Mitigation measure CN-2 states, “Traffic management and
construction mitigation plans shall be developed in coordination with the community to
minimize disruption and limit construction activities during special events.”
Additionally, mitigation measure CN-2 requires worksite traffic control plans to be
developed in connection with the Los Angeles Department of Transportation to
accommodate this pedestrian and vehicular traffic. Mitigation measures CN-4 and CN-5
require community outreach and notification concerning construction activities including
the availability of a 24-hour hotline. Mitigation measure DR-5 prohibits defendant from
hindering access to any public parking lot which would includes the one owned by
plaintiff. Substantial evidence supports defendant’s finding that no significant adverse
effect will occur during the construction on the hotel’s Flower Street side.
D. Grade Separation Potential
Plaintiff contends the environmental impact report fails to contain any analysis of
the potential grade separation of up to 24 inches between the construction decking and
the prior street grade. Plaintiff argues that the grade separation will impede pedestrian
and vehicular passage. The report is not deficient in this regard.
Because of the use of the cut-and-cover construction method, temporary concrete
decking will be installed over excavated parts of Flower Street. As explained previously,
the decking will allow vehicle and pedestrian traffic to pass above construction activities
occurring beneath the street. Such decking will be either flush with the existing street
level or raised above that surface. If the decking is raised, ramps compliant with the
Americans with Disabilities Act will be installed. Defendant’s director’s board adopted
this modification, “South of 4th Street construction decking shall be no higher than 10
23
[inches], if feasible, above the existing grade, and flush with existing curb on the east and
west side of Flower Street with a maximum gross gradient of 3%.” (Italics added.)
Seizing on the phrase “if feasible,” plaintiff assumes defendant is empowered to
elevate the decking beyond 10 inches. According to plaintiff, defendant may elevate the
decking up to a potential 24 inches above the existing grade. This assumption is not
grounded in the record. Rather, defendant is constrained from unilaterally determining
decking may exceed that 10 inch upper limit. The upper height of the decking is subject
to the restriction that the decking must be “flush with existing curb on the east and west
side of Flower Street” And the maximum gross gradient will be three per cent over the
curb height.
Further, defendant’s planned Flower Street deck installation is subject to
mitigation measures and other governmental restrictions. In the responses to comments,
defendant also acknowledged, “[T]emporary (during construction) roadway
configurations will be reviewed with [Los Angeles Department of Transportation] for
compliance with roadway standards and designed to meet vehicle standards.” Defendant
also explained in the responses to comments: “Any decking configurations would require
construction of [Americans with Disabilities Act]-compliant ramps and accesses as well
as modifications to vehicular access points to the garages and driveway along Flower
Street, as indicated in [the draft environmental impact report and environmental impact
report]. Any decking configurations would be designed to accommodate pedestrians, the
undercarriage and overhead clearances of vehicles using the driveways, garages and
loading docks as indicated in the same sections. On another point, in responses to
questions, defendant explains it will maintain access to plaintiff’s property, including
parking structures. In terms of other decking related concerns, defendant’s responses to
comments states there will adequate access to bus stops, shuttle areas, taxi drop-off areas
and mid-block pedestrian crossings in all decking configurations.
24
E. Nighttime construction noise, illumination and glare impacts
1. Noise
Plaintiff contends the environmental impact report fails to analyze the full scope
and duration of both the noise and the illumination and glare impacts from nighttime
construction. The environmental impact report analyzes construction noise and vibration.
The environmental impact report analysis is based in part on Appendix S, “Regional
Connector Transit Corridor Noise and Vibration Technical Memorandum.” This
technical memorandum was prepared by CDM and the Parsons Brinckerhoff firm. The
environmental impact report analysis examined both nighttime and daytime construction
activities.
First, the environmental impact report discusses that during construction there will
be construction-related noise. In terms of the entirety of the project, the areas with the
most potential for noise impacts include the cut and cover construction on Flower Street.
The reason for the potential for noise impact exists is because of the duration of
construction and its proximity to the hotel. Tables 4.7.11 and 4.7-15 quantify the
anticipated noise levels during construction on Flower Street in the area south of Fourth
Street. However, the environmental impact report concludes that the noise impacts
would be less than significant, “[E]stimated construction noise levels would not exceed
[Federal Transit Authority] construction noise criteria . . . and impacts would be less than
significant.” Substantial evidence supports defendant’s findings in the environmental
impact report that with mitigation construction noise levels will be reduced below
significant levels. The environmental impact report explains, “[T]he construction
contractor [will] use [best management practices] to ensure construction-related noise
levels do not exceed [Federal Transit Administration] construction noise criteria. . . .”
The environmental impact report describes in sufficient detail the best management
practices and noise control devices to accomplish reduction in construction-related noise
levels to below those specified by the Federal Transit Administration. Also, pursuant to
25
the environmental impact report, “The construction mitigation plan shall prohibit noise
levels generated during construction from exceeding the . . . Construction noise criteria.”
The environmental impact report discusses mitigation measures NV-13 through NV-17,
which require: “noise levels may not exceed the Federal Transit Administration
construction noise criteria”; this includes preventing simultaneous operation of major
pieces of construction equipment if they exceed the aforementioned construction noise
criteria; and if a noise complaint is received during project construction, monitoring shall
be conducted in the vicinity of the area in question. If the monitored noise exceeds the
Federal Transit Administration construction noise criteria, then the steps specified in
mitigation measures NV-14 through NV-17 shall be implemented: “temporary noise
barriers” shall be provided; alternative “back-up alarms/warning procedures” shall be
used where feasible as needed; higher performance mufflers shall be used on equipment
used during nighttime hours; and portable noise sheds for smaller, noisy equipment such
as air compressors, dewatering pumps and generators shall be provided as needed.
The specifics of how much noise impacts actually will be generated and the
mitigation measures will be implemented during construction of the project are not
ascertainable beforehand. The environmental impact report is therefore not deficient for
failing to disclose such unknown matters. Under these circumstances, delaying
identification and implementation of more specific mitigation measures until such
impacts arise is proper. (Citizens for a Sustainable Treasure Island v. City and County of
San Francisco (2014) 227 Cal.App.4th 1036, 1059-1060 [plan to be developed to clean
up hazardous waste]; see Oakland Heritage v. City of Oakland, supra, 195 Cal.App.4th at
p. 910.) It bears emphasis though that no noise levels above the Federal Transit
Authority criteria will ever be permissible.
26
2. Glare and illumination
a. exhaustion of administrative remedies
Defendant argues that plaintiff failed to exhaust its administrative remedies in
connection with nighttime glare and illumination impacts. Defendant argues that no
analysis was presented during the public comment period concerning the defect in the
environmental impact report’s discussion of illumination and glare impacts. We apply
the following standards to defendant’s exhaustion of administrative remedies contention:
“‘“No action or proceeding may be brought pursuant to Section 21167 unless the alleged
grounds for noncompliance [ ] were presented to the public agency orally or in
writing . . . .” (§ 21177, subd. (a).)’ (Sierra Club v. City of Orange (2008) 163
Cal.App.4th 523, 535 (Sierra Club).) ‘“The essence of the exhaustion doctrine is the
public agency’s opportunity to receive and respond to articulated factual issues and legal
theories before its actions are subjected to judicial review.”’ (Evans v. City of San Jose
(2005) 128 Cal.App.4th 1123, 1138 (Evans), quoting Coalition for Student Action v. City
of Fullerton (1984) 153 Cal.App.3d 1194, 1198.) Comments must express concerns so
the lead agency has ‘“‘“its opportunity to act and to render litigation unnecessary.”’”’
(Sierra Club, supra, 1623 Cal.App.4th at p. 535.) ‘The purposes of the doctrine are not
satisfied if the objections are not sufficiently specific so as to allow the Agency the
opportunity to evaluate and respond to them.’ (Evans, supra, 128 Cal.App.4th at p.
1138.) ‘“[R]elatively . . . bland and general references to environmental matters” [ ], or
“isolated and unelaborated comment[s]”’ do not satisfy the exhaustion requirement.
(Citizens for Responsible Equitable Environmental Development v. City of San Diego
(2011) 196 Cal.App.4th 515, 527[].) Rather, ‘“[t]he ‘exact issue’ must have been
presented to the administrative agency. . . .”’ (Sierra Club, supra, 163 Cal.App.4th at p.
535.) Requiring anything less ‘would enable litigants to narrow, obscure, or even omit
their arguments before the final administrative authority because they could possibly
obtain a more favorable decision from a trial court.’ (Tahoe Vista Concerned Citizens v.
27
County of Placer (2000) 81 Cal.App.4th 577, 594.) [¶] Exhaustion of administrative
remedies is a ‘jurisdictional prerequisite.’ (California Native Plant Society v. City of
Rancho Cordova[, supra,] 172 Cal.App.4th [at p.] 615[].) The petitioner has the burden
of proof to show exhaustion occurred. (Porterville Citizens for Responsible Hillside
Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909 [].) Inasmuch as the
issue of exhaustion is a question of law, ‘[a]n appellate court employs a de novo standard
of review when determining whether the exhaustion of administrative remedies doctrine
applies.’ (Sierra Club, supra, 163 Cal.App.4th at p. 536.)” (North Coast Rivers Alliance
v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623-624
(North Coast).) We recognize there are varying levels of specificity adverted to in Court
of Appeal opinions. (See 2 Kostka & Zischke, op.cit., § 23.98, pp. 23-107 to 23-112.)
Plaintiff argues that the project’s scope changed by the time of the environmental
impact report’s certification. Thus, according to plaintiff, there was no opportunity to
raise any issues concerning the illumination and glare impacts. This contention has no
merit. A representative of the City of Los Angeles expressed concern about nighttime
construction during the public comment period. The letter stated, “[A]s desirable as
night-time construction activity might be, any night-time activity adjacent [to] residential
development must be strictly controlled so that residents are not disrupted by noise, light
and dust from construction activities.” Thus, defendants were on notice that there would
be significant construction of the hotel’s east side on Flower Street. Employees of the
City of Los Angeles certainly were on notice as evidenced by the letter. Further, the
generalized concern about nighttime lighting expressed in the letter was insufficient to
preserve the issue. Moreover, the generalized concern expressed in the letter related to
housing near the Historic Core of the city. This was insufficient to preserve the issue.
(North Coast, supra, 216 Cal.App.4th at pp. 623-624; Sierra Club, supra, 163
Cal.App.4th at p. 536.)
28
b. even if the issue is preserved, the environmental impact report’s discussion concerning
lighting and glare impacts is sufficient
Even if the issue had been preserved, the environmental impact report’s discussion
regarding lighting and glare impacts arising from nighttime construction on Flower Street
is sufficient. The environmental impact report discusses lighting and glare impacts
arising from nighttime construction on Flower Street; e.g., installation of decking. The
report acknowledges “[t]emporary lighting” may be necessary during for nighttime
construction and describes mitigation measures designed to restrict equipment use during
nighttime construction. Mitigation measure VA-3 requires defendant to shield temporary
construction lighting to reduce spillover.
Further, the environmental impact report concludes nighttime construction will
have a less than significant illumination and glare impacts. Lighting is not expected to be
necessary regularly and temporary walls will shield the construction staging areas from
direct views. The exception to this expectation involves security lighting. And such
lighting would be lower than the lighting sources employed by elevated buildings along
Flower Street. Plaintiff’s challenges to the adequacy of the mitigation measures are
nothing more than efforts to have us reweigh conflicting evidence and inferences. We
are prohibited from doing so. (Citizens of Goleta Valley v. Board of Supervisors, supra,
52 Cal.3d at p. 564; Laurel Heights Improvement Assn. v. Regents of University of
California, supra, 47 Cal.3d at p. 392.)
F. Recirculation of the environmental impact report
Plaintiff contends defendant improperly failed to re-circulate the environmental
impact report in view of defendant’s late changes to the project. According to plaintiff,
substantial changes include materially increasing the scope and duration of nighttime
construction from a small number of days to one and one half years and eliminating the
29
pocket track. Re-circulation was not required, because the new information was not
significant under section 21092.1 and Guidelines, section 15088.5, subdivision (a).
Section 21092.1 requires recirculation of an environmental impact report when
“significant new information” has been added after the public comment period.
Recirculation of an environmental impact report is required under these circumstances:
“A lead agency is required to recirculate an [environmental impact report] when
significant new information is added to the [environmental impact report] after public
notice is given of the availability of the draft [environmental impact report] for public
review . . . but before certification. . . . [T]he term ‘information’ can include changes in
the project or environmental setting as well as additional data or other information. New
information added to [a report] is not ‘significant’ unless the [report] is changed in a way
that deprives the public of a meaningful opportunity to comment upon a substantial
adverse environmental effect of the project or a feasible way to mitigate or avoid such an
effect (including a feasible project alternative) that the project’s proponents have declined
to implement. ‘Significant new information’ requiring recirculation include, for example,
a disclosure showing that: [¶] (1) A new significant environmental impact would result
from the project or from a new mitigation measure proposed to be implemented. [¶] (2)
A substantial increase in the severity of an environmental impact would result unless
mitigation measures are adopted that reduce the impact to a level of insignificance. [¶]
(3) A feasible project alternative or mitigation measure considerably different from
others previously analyzed would clearly lessen the significant environmental impacts of
the project, but the project’s proponents decline to adopt it. [¶] (4) The draft
[environmental impact report] was so fundamentally and basically inadequate and
conclusory in nature that meaningful public review and comment were precluded.
(Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043).”
(Guidelines, § 15088.5, subd. (a).) However, recirculation is not required under these
circumstances, “Recirculation is not required where the new information added to the
[report] merely clarifies or amplifies or makes insignificant modifications in an adequate
[environmental impact report].” (Guidelines, § 15088.5, subd. (b).)
30
Our standard of review of defendant’s decision not to recirculate the
environmental impact report is as follows: “We give [defendant’s] determination
substantial deference and presume it to be correct. [Plaintiff] bears the burden of proving
substantial evidence does not support [defendant’s] decision not to revise and recirculate
the [final environmental impact report].” (Western Placer Citizens for an Agricultural
and Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890, 903; Sierra
Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497.) The Court of Appeal for
the Fifth Appellate District has explained: “In other words, recirculation is not required
simply because new information is added. As the California Supreme Court observed in
Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6
Cal.4th 1112 . . ., ‘the final [environmental impact report] will almost always contain
information not included in the draft [environmental impact report]’ given the . . .
statutory requirements of circulation of the draft [environmental impact port], public
comment, and response to these comments prior to certification of the final
[environmental impact report]. (Id. at p. 1124.) But ‘[r]ecirculation was intended to be
an exception, rather than the general rule.’ (Id. at p. 1132.) [¶] An express finding is not
required on whether new information is significant; it is implied from the agency’s
decision to certify the [environmental impact report] without recirculating it. [Laurel
Heights Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th at] p.
1133.)” (South County Citizens for Smart Growth v. County of Nevada (2013) 221
Cal.App.4th 316, 328.) On appeal, plaintiff has the burden of proving substantial
evidence does not support defendant’s decision not to revise and recirculate the
environmental impact report. (Western Placer Citizens for an Agricultural & Rural
Environment v. County of Placer, supra, 144 Cal.App.4th at p. 903; Sierra Club v.
County of Napa, supra, 121 Cal.App.4th at p. 1497.)
Plaintiff fails to demonstrate that any new information regarding nighttime noise,
glare and illumination would be significant. As noted, substantial evidence supports
defendant’s finding that nighttime noise, glare and illumination effects would be
insignificant. Therefore, in the absence of evidence that the nighttime noise, glare and
31
illumination impacts would be significant, defendant was not required to re-circulate the
environmental impact report.
Further, there is no substantial evidence that using a lower alignment for the
subway will be feasible. As noted, Guidelines, section 15088.5, subdivision (a) defines
the term “significant new information” as follows, “A feasible project alternative or
mitigation measure considerably different from others previously analyzed would clearly
lessen the significant environmental impacts of the project, but the project’s proponents
decline to adopt it.” And, plaintiff has the burden of demonstrating that the lower
alignment for the subway would be feasible. (South County Citizens for Smart Growth v.
County of Nevada, supra, 221 Cal.App.4th at p. 330; Sierra Club v. County of Napa,
supra, 121 Cal.App.4th at p. 1497.)
Plaintiff has not sustained its burden of proving that the lower subway alignment
was actually feasible. Presumably, plaintiff is contending that a lower subway alignment
would allow the use of a tunnel boring machine with its less onerous ecological impacts.
Plaintiff relies on several portions of the record to support its feasibility analysis. To
begin with, plaintiff relies on the following several sentences in the Connector
Partnership’s “Alternative Study: More Tunneling on Lower Flower Street”: “For the
concept of a deeper tunnel that would avoid tiebacks and be in better ground conditions,
shafts for access or ventilation, or a station, would have higher cost with greater depth. If
several other conditions were favorable to a deep tunnel, the additional cost of deeper
structures might be immaterial compared to the benefit.” Additionally, plaintiff relies on
the following analysis in a memorandum prepared for defendants directors board for its
April 26, 2012 meeting: “The pocket track has been eliminated. It has narrowed the cut
and cover structure and may have reduced the duration and extent of utility relocation and
decking, but the overall project schedule has not improved and the easements are still
necessary.” Taken together, the cited references to the record failed to constitute
substantial evidence that the lower alignment for the subway would be actually feasible.
Further, the Connector Partnership’s technical memorandum raises uncertainty as
to cost considerations if a lower alignment is used. Economic issues are relevant to the
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feasibility requirement. (Guidelines, § 15364.) Feasibility is dependent upon a series of
factors including economic considerations: “Whether a mitigation measure or alternative
is feasible ‘involves a balancing of various “economic, environmental, social, and
technological factors.”’ (City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d
401, 417 quoting § 21061.1; see Guidelines, § 15364 [‘“Feasible”’ means capable of
being accomplished in a successful manner within a reasonable period of time, taking
into account economic, environmental, legal, social, and technological factors.’].)”
(Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th
360, 381-382.)
Finally, nothing in the directors’ board response to the April 26, 2012 motion of
three directors changes matters. The environmental impact report was certified on
January 20, 2012. On April 26, 2012, three directors made the following motion
concerning use of tunnel boring machine south of Fourth Street: “Over the past 60 days,
a number of issues have been examined and the following mitigation measures have been
deemed feasible by [defendant]: [¶] Extend the use of a tunnel boring machine . . . under
Flower Street to include the area between 4th and 5th Streets up to the intersection of 5th
Street and Flower Street. . . . [¶] . . . WE THEREFORE MOVE that Staff should
examine various engineering and cost methods to determine if the aforementioned
mitigation methods can be incorporated without an increase in the Life of Project . . .
Budget and report back in 60 days. [¶] WE FURTHER MOVE that the [directors board]
amend the Locally Preferred Alternative . . . of the . . . [p]roject to include the above
design features if it can be completed within the current [Life of Project] budget. If
[defendant’s] staff determines that inclusion of these design features will exceed the [Life
of Project] budget, the design features shall be included as proposal options during the
construction procurement to allow proposers a process to include each feature and
determine if it can be accomplished with the [Life of Project] budget.”
The directors board responded as follows to the three directors’ motion: “The
[b]oard approved the Regional Connector project on April 26, 2012 that included an
extension of a tunnel to the 5th and Flower Streets. Staff has been working with various
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stakeholders regarding the potential construction impacts along Flower Street.
[Defendant’s] staff and outside engineers both believe this option is technically feasible
but there is disagreement whether it can be done within the existing life of the project
budget.” The directors board then authorized commencement of the procurement bid
process that secured separate bid options for both cut-and-cover and tunneling options up
to Fifth and Flower Streets. However, the bids were only acceptable if they came in
under the life of project budget. If the bids came in under the life of project budget, the
tunnel construction technique was to be the preferred construction option. Plaintiff relies
on this April 26, 2012 motion and resolution as demonstrating as a matter of law the
environmental impact report should have been recirculated. As noted, the environmental
impact report was certified on January 20, 2012. We disagree with plaintiff’s analysis.
We need not decide the recirculation issue on a basis of engineering feasibility.
Rather, plaintiff has the burden of proof. Plaintiff has not produced substantial evidence
that it is financially feasible to use a lower tunneling profile. As we have explained, the
feasibility requirement requires a project be economically practicable. As noted, we
apply a deferential standard of review to this issue. (Western Placer Citizens for an
Agricultural and Rural Environment v. County of Placer, supra, 144 Cal.App.4th at p.
903; Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1497.) Thus, because
plaintiff has failed to sustain its burden of proof concerning the economic feasibility of a
deeper tunneling profile, recirculation of the environmental impact report was
unnecessary. (§ 21061.1; Guidelines, § 15364; City of Del Mar v. City of San Diego,
supra, 133 Cal.App.3d at p. 417.)
We need not address whether the development of post-certification feasibility
evidence can require that an already certified environmental impact report be
recirculated. And we need not decide whether the post-certification development of
aspects of a project’s feasibility may impeach an earlier environmental impact report
certification determination. Here, there is no substantial evidence the lower tunneling
profile raised in the April 26, 2012 order was financially feasible.
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G. Public Records Act Claim
As noted, the first cause of action alleges a violation of the Public Records Act.
Plaintiff’s public records disclosure claim may not be pursued on direct appeal.
According to the first cause of action, defendant improperly asserted exemptions for
disclosure of public records and failed to produce the “Flower Street Tunneling Study” in
response to plaintiff’s request. Any issue concerning the duty to disclose a public record
may not be raised on direct appeal but only by means of a writ petition. (Gov. Code,
§6259, subd. (c); Powers v. City of Richmond (1995) 10 Cal.4th 85, 110 (lead opn. of
Kennard, J.); MiniCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214
Cal.App.4th 259, 261, 263-264.) Thus, we may not consider the issue on direct appeal.
Further, as plaintiff presents no significant public records issue, no sound reason exists
for us to deem the appeal to be a writ petition. (Morehart v. County of Santa Barbara
(1994) 7 Cal.4th 725, 744-747; Olson v. Cory (1984) 35 Cal.3d 390, 401.)
IV. DEFENDANT’S CROSS-APPEAL
Defendant cross-appeals, contending its judgment on the pleadings motion, which
argues the project was exempt from the environmental impact report requirement, should
have been granted. (§ 21080, subd. (b)(12) [“This division does not apply to any of the
following activities: [¶] . . . (12) Facility extensions not to exceed four miles in length
which are required for the transfer of passengers from or to exclusive public mass transit
guideway or busway public transit services”]; see Berkeley Hillside Preservation v. City
of Berkeley (2015) 60 Cal.4th 1086, 1098.) In affirming the judgment on appeal, we are
upholding the trial court’s approval of defendant’s environmental impact report
certification. There is no effectual relief we can provide to defendant by reaching the
merits of its exemption contention. Thus, all of defendant’s exemption contentions are
moot. Defendant’s cross-appeal must therefore be dismissed. (Eye Dog Foundation v.
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State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Steiner v. Superior
Court (2013) 220 Cal.App.4th 1479, 1485.)
V. DISPOSITION
The judgment is affirmed. The cross-appeal is dismissed. Defendant, The Los
Angeles County Metropolitan Transit Authority, shall recover its costs incurred on appeal
from plaintiff, Today’s IV, Inc. No costs are to be recovered in connection with the
cross-appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
BAKER, J.
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