Save Our Rural Town v. County of Los Angeles CA2/5

Filed 9/10/20 Save Our Rural Town v. County of Los Angeles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

SAVE OUR RURAL TOWN, B294182

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS166732)
v.

COUNTY OF LOS
ANGELES et al.,

Defendants and
Appellants;

DOUGLAS GAUDI et al.,

Real Parties in Interest
and Appellants.

APPEAL from an order of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed, in part;
remanded, in part.
 Jackson Tidus, Alene M. Taber, Ballard Spahr, Brian
D. Huben, for Plaintiff and Appellant.
Dušan Pavlović, Senior Deputy County Counsel, for
Defendant and Appellant County of Los Angeles.
Poole & Shaffery, Hunt Braly, for Real Parties in
Interest and Appellants.
__________________________

INTRODUCTION

Appellants and cross-respondents are the County of
Los Angeles (County), together with real parties in interest
Douglas and Joanna Gaudi, Paul Zerounian, and Robert
Friedman (Applicants). Respondent and cross-appellant is
Save Our Rural Town (SORT). The trial court issued a
judgment granting a peremptory writ of mandate on SORT’s
first cause of action for violation of the California
Environmental Quality Act, Public Resources Code section
21000 et seq. (CEQA),1 and dismissing SORT’s second
through seventh causes of action. The County and
Applicants appealed, seeking clarification of the trial court’s

1 All further statutory references are to CEQA
provisions as codified in Public Resources Code sections
21000–21177 unless otherwise indicated. Where applicable,
the CEQA guidelines (Cal. Code Regs., tit. 14, §§ 15000–
15387) will be noted as “Guidelines” throughout the text to
distinguish between the Public Resources Code and the Code
of Regulations.

2
writ of mandate. SORT argues that the appeal should be
dismissed. Following the appeal filed by the County and
Applicants, SORT filed a cross-appeal, asking this court to
reverse the trial court’s determination that two of SORT’s
CEQA claims were not supported by substantial evidence of
a fair argument that the Applicants’ proposed project would
have a significant impact on the environment. SORT also
contends the court erroneously found there was substantial
evidence supporting the County’s findings that the project
was consistent with applicable land use plans and zoning.
We dismiss the appeal filed by the County and
Applicants, because they have not sought any form of relief
available on appeal. We agree with SORT that there is
substantial evidence of a fair argument that the two areas
discussed in the briefing may cause a significant
environmental impact. We reject the rest of the arguments
made in SORT’s cross-appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Our description of the factual and procedural
background draws heavily from the trial court’s extensive
and detailed written ruling.

A. The Proposed Project

Applicants seek to develop a parcel of real property in
the rural community of Acton, located in an unincorporated

3
area of Los Angeles County, in the southwestern portion of
the Antelope Valley, south of the City of Palmdale, along the
14 Freeway. The proposed project (the Project) would
include a 3,300 square foot restaurant providing both dine-in
and drive-through service, a 6,000 square foot retail
building, and storage facilities.

B. Administrative Proceedings

Between 2014 and 2017, the Project went through two
separate but overlapping approval processes with the
Planning Commission, each time with an appeal to the Los
Angeles County Board of Supervisors (the Board).

1. 2014 Conditional Use Permit

The Applicants sought a conditional use permit (the
2014 CUP) for the Project. The Planning Commission
prepared an initial study and proposed certifying a negative
declaration under CEQA. As will be explained in more
detail later, there were two traffic studies—one dated
January 20, 2015 and a second dated August 5, 2015—but
only the earlier traffic study was made available to the
public. In April 2016, the Planning Commission certified a
negative declaration and approved the 2014 CUP without
the drive-through restaurant portion of the Project.
Explaining its decision to approve the Project without the
drive-through, the Planning Commission stated that while a

4
drive-through was not a “high-intensity use,” it would be
disruptive to Acton’s rural character because the property is
adjacent to the 14 Freeway, and therefore would provide a
convenient dining option that would attract travelers.
Zerounian, the restaurant owner, appealed the
Planning Commission’s decision to eliminate the drive-
through from the Project, bringing the matter to the Board.
By November 2016, the Board had certified the negative
declaration, and adopted findings and conditions stating, in
relevant part, that even with the drive-through, the 2014
CUP and Project: (1) would not draw substantial traffic
from the freeway; (2) is consistent with the Antelope Valley
Area Plan; and (3) complies with the County’s zoning codes.

2. 2016 subdivision approval

In February 2016, while the 2014 CUP application was
still pending before the Planning Commission, the
Applicants initiated a second proceeding by seeking approval
to subdivide the property, separating the retail building and
the drive-through restaurant into two separate parcels (the
Parcel Split). In February 2017, the Planning Commission
approved the Parcel Split and certified an addendum to the
negative declaration for the 2014 CUP. SORT appealed,
bringing the matter to the Board. In October 2017, the
Board adopted findings that (1) the Parcel Split did not
change the scope or nature of the 2014 CUP and did not
result in significant environmental effects not discussed in

5
the negative declaration for the 2014 CUP, and (2) that no
new information of substantial importance arose related to
the Parcel Split that would result in significant
environmental impacts not discussed in the negative
declaration.

C. Writ Proceedings

Shortly after the Board approved the 2014 CUP, SORT
filed its initial petition for writ of mandate. A first amended
petition was filed after the Board approved the Parcel Split.
On July 27, 2018, the court issued a detailed written ruling.
It concluded that the County violated CEQA when it failed to
make the August 4, 2015 traffic study available to the public
before the certifying the negative declaration and approving
the 2014 CUP with a drive-through. The court further found
that SORT had identified substantial evidence supporting a
fair argument that the overall Project (referring to both the
2014 CUP approval and the Parcel Split) may cause
significant transportation impacts. Specifically, the court
found substantial evidence supporting a fair argument that
the Project may require installation of traffic signals, and
the County had not analyzed that potential traffic impact.
There was also substantial evidence to support a fair
argument that the Project might exacerbate pedestrian
hazards, which the County also failed to analyze in its initial
study. The trial court rejected a number of SORT’s other
arguments, finding insufficient evidence to support a fair

6
argument, including two arguments relevant to this appeal:
(1) that the Project would cause traffic delays at a specific
intersection in Acton; and (2) the Project would cause
specified traffic delays based on the number of cars
anticipated to use the drive-through during peak hours.
After each party submitted a proposed judgment and
filed objections to the other party’s proposed judgment, the
court held a hearing on September 18, 2018, to address the
proper form of judgment. Focusing on the differences
between the two proposed judgments, in particular whether
the judgment should void the Board’s land use approvals in
whole or in part, the court asked the parties “once the court
concludes there’s a fair argument, that there’s substantial
evidence of a fair argument, doesn’t that mean the County
has to do an EIR [environmental impact report]?”
Applicants argued that under section 21168.9 and Center for
Biological Diversity v. Department of Fish & Wildlife (2017)
17 Cal.App.5th 1245, 1255 (Center for Biological Diversity),
courts have “broad latitude and flexibility in terms of how to
fashion the appropriate relief to ensure compliance with
CEQA.” Applicants argued that the nature of the court’s
ruling on the traffic impact issues left open the possibility
that the County could proceed with one of three options: a
negative declaration, a mitigated negative declaration
(MND), or an EIR. Acknowledging that the procedural error
of failing to make the August 4, 2015 traffic study available
to the public was a different question, the court pressed
further, asking how a negative declaration would be possible

7
once the court had found substantial evidence of a fair
argument on two specific issues—traffic signals and
pedestrian safety. Applicants argued that a revised traffic
study would analyze those two issues, comparing the court’s
ruling to a “fix-it ticket,” that should direct the Applicants to
fix the identified issues and nothing more, similar to the
project proponents in Center for Biological Diversity. SORT
argued that Center for Biological Diversity was
distinguishable, because there the court had made severance
findings under section 21168.9, while Applicants here had
not requested severance findings.
On October 3, 2018, the trial court entered judgment in
favor of SORT on its first cause of action (CEQA violation),
and issued a writ of mandate which, after handwritten
interlineation, directed the County to “do the following: [¶]
1. Set aside and vacate [the November 15, 2016 Board order
for the 2014 CUP] that certified the Negative Declaration;
shall set aside and vacate [the October 31, 2017 Board order
for the Parcel Split] that relied upon the certified Negative
Declaration; shall set aside and vacate any other pertinent
approvals dependent upon the Negative Declaration; and,
conduct further proceedings under CEQA in light of the
Court’s ruling dated July 27, 2018.”

8
 DISCUSSION

CEQA overview

“CEQA was enacted to advance four related purposes:
to (1) inform the government and public about a proposed
activity’s potential environmental impacts; (2) identify ways
to reduce, or avoid, environmental damage; (3) prevent
environmental damage by requiring project changes via
alternatives or mitigation measures when feasible; and (4)
disclose to the public the rationale for governmental
approval of a project that may significantly impact the
environment.” (California Building Industry Assn. v. Bay
Area Air Quality Management Dist. (2015) 62 Cal.4th 369,
382.)
To implement these goals, CEQA requires state and
local government agencies first to determine whether a
proposed activity is a project subject to CEQA, and then to
determine whether the project is exempt from CEQA or
requires some form of a CEQA document, whether that be an
EIR, a negative declaration, or an MND. (See generally
Union of Medical Marijuana Patients, Inc. v. City of San
Diego (2019) 7 Cal.5th 1171, 1185–1187; Friends of College of
San Mateo Gardens v. San Mateo County Community College
Dist. (2016) 1 Cal.5th 937, 944–945.) An EIR is “an
informational document,” the purpose of which “is to provide
public agencies and the public in general with detailed
information about the effect which a proposed project is

9
likely to have on the environment; to list ways in which the
significant effects of such a project might be minimized; and
to indicate alternatives to such a project.” (§ 21061.) “A
negative declaration is ‘a written statement briefly
describing the reasons that a proposed project will not have
a significant effect on the environment and does not require
the preparation of an environmental impact report.’
(§ 21064.) An MND is ‘a negative declaration prepared for a
project when the initial study has identified potentially
significant effects on the environment, but (1) revisions in
the project plans or proposals made by, or agreed to by, the
applicant before the proposed negative declaration and
initial study are released for public review would avoid the
effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur, and (2)
there is no substantial evidence in light of the whole record
before the public agency that the project, as revised, may
have a significant effect on the environment.’ (§ 21064.5.)”
(Clews Land & Livestock, LLC v. City of San Diego (2017) 19
Cal.App.5th 161, 183–184 (Clews).)

Applicants fail to raise any appellate issues

Applicants’ opening brief poses a conundrum for this
court, because it does not make any recognizable assertion
that the trial court committed any error requiring reversal.
In fact, Applicants do not seek a reversal of the judgment;
they only seek a clarification. According to Applicants, the

10
lower court’s order (presumably its writ of mandate) does not
expressly state what Applicants believe is required under
CEQA. “Accordingly, once the minor additional traffic
analysis is performed, the CEQA requirements will be
fulfilled and the project can once again be circulated for
public comment and considered at a hearing by the Los
Angeles County Board of Supervisors. Because the Court
order did not expressly state this fact, however, [Applicants]
deem it prudent and necessary to clarify the order through
this appeal.”
It is uncontroverted that appellant bears the burden on
appeal of showing prejudicial error. (Cal. Const., art. VI,
§ 13; F.P. v. Monier (2017) 3 Cal.5th 1099, 1107–1108.) The
fundamental problem posed by Applicants’ opening brief is
summarized in the following excerpt from Kelley v. Bailey
(1961) 189 Cal.App.2d 728, 731: “[W]hile counsel for the
appellant is entitled to be heard upon every error which he
deems it his duty to raise as ground for reversal, the
appellate court cannot be expected to search the record or
prosecute an independent inquiry for errors on which the
appellant may be relying. It will notice only those errors
pointed out in the brief, and all others may be deemed
waived or abandoned. Hence an appellant who fails to
present a point in his brief is precluded from insisting that
the court consider the matter. Not only must the appellant
raise the point in his brief, but he must point out the error
specifically, showing exactly wherein the lower court’s action
is deemed erroneous.” (Italics added.) Here, Applicants do

11
not argue in their opening brief that the trial court’s
judgment was erroneous or requires reversal; they ask that
we add language to the trial court’s judgment, because it was
not expressly stated by the trial court itself.
Having failed to point to any prejudicial error in the
opening brief, Applicants argue in their reply brief that the
trial court failed to sever the judgment as permitted under
section 21168.9, subdivision (b). As far as we can decipher,
Applicants argue that the trial court should have severed the
negative declaration from the Board’s orders approving the
2014 CUP and the Parcel Split. This argument fails for two
independent reasons. First, any argument made for the first
time in the reply brief is waived, absent a showing of good
cause. (Save Agoura Cornell Knoll v. City of Agoura Hills
(2020) 46 Cal.App.5th 665, 681 (Agoura Knoll) [issue
forfeited when raised only in reply brief].) Applicants
provide no reason, much less reasons constituting good
cause, for their failure to raise the severance issue in the
opening brief. Second, even if we were to consider the merits
of Applicants’ argument, they have not demonstrated that
the trial court abused its discretion in declining to make
express severance findings. “When a court voids an agency
determination ‘in part,’ it must make severance findings
pursuant to section 21168.9, subdivision (b), to determine
whether the voided portions are severable, and whether the
remainder will be in full compliance with CEQA.” (Center
for Biological Diversity v. Department of Fish & Wildlife,
supra, 17 Cal.App.5th at p. 1253.) Here, the project approval

12
could not be in full compliance with CEQA if a court severed
from that project approval the negative declaration on which
the project approval depends. For a project approval to
occur, there must be some valid CEQA document (i.e., a
negative declaration, mitigated negative declaration, or EIR)
attached to it at the time of approval. The kind of severance
sought here would lead to subsequent actions by the County
with respect to traffic studies that are no more than a post-
hoc rationalization for the severed, prior project approval.
That is impermissible under CEQA. (Save Tara v. City of
West Hollywood (2008) 45 Cal.4th 116, 127 [subsequent EIR
preparation did not moot question of whether project
approvals complied with CEQA]; Laurel Heights
Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376; Center for Biological Diversity, supra,
at pp. 1256–1257 [valid severance findings supported order
severing non-compliant project approvals from ones that
would not prejudice full and complete compliance with
CEQA if left in place].)

SORT’s cross-appeal

SORT’s cross-appeal includes three contentions of
error. First, SORT contends that the trial court erred when
it found no substantial evidence to support a fair argument
on two areas where SORT argued the Project would have
traffic impacts—traffic delays at the intersection of Crown
Valley and Antelope Woods Road, and traffic delays on

13
Sierra Highway based on the number of cars anticipated to
use the drive-through during peak hours. Second, SORT
contends the trial court applied the wrong standard of
review when it upheld the Board’s determination that the
Project was consistent with the Antelope Valley Area Plan.
Third, SORT contends the trial court failed to consider its
argument that the Board’s approval of the 2014 CUP
violated County zoning codes.

A. Substantial evidence of a fair argument on vehicle
traffic delays

When the trial court considered whether there was
substantial evidence of a fair argument that the Project
would have a significant impact on traffic, it found that a
fair argument existed on two of SORT’s claims: traffic
signalization and pedestrian hazards. However, the trial
court rejected three other traffic-related claims raised by
SORT, finding no substantial evidence of a fair argument of
significant impacts regarding: trip generation estimates;
vehicle delays at a specific intersection; and vehicle delays
and interference with street traffic caused by back-ups at the
drive-through service at the restaurant.
In its cross-appeal, SORT contends that the trial court
erred, and that the administrative record contains
substantial evidence supporting a fair argument that the
Project may have significant environmental impacts in two
of the three areas rejected by the trial court. SORT does not

14
challenge on appeal the trial court’s findings relating to trip
generation estimates. Rather, its argument is centered
around evidence of vehicle delays at the intersection of
Crown Valley and Antelope Woods Road and at the driveway
leading into the drive-through for the restaurant.
Applicants’ only response to this argument is that the trial
court was not persuaded, and did not find substantial
evidence to support SORT’s claims. We agree with SORT
that there is sufficient evidence in the record to support a
fair argument that the Project may have a significant impact
on the environment in the two areas SORT raises on appeal.

1. Standard of review - substantial evidence of a fair
argument

“In reviewing an agency’s . . . decision for compliance
with CEQA, we ask whether the agency has prejudicially
abused its discretion; such an abuse is established ‘if the
agency has not proceeded in a manner required by law or if
the determination or decision is not supported by substantial
evidence.’ ([ ] § 21168.5.) In determining whether there has
been an abuse of discretion, we review the agency’s action,
not the trial court’s decision. ‘[I]n that sense appellate
judicial review under CEQA is de novo.’ [Citation.]” (Center
for Biological Diversity v. Department of Fish & Wildlife
(2015) 62 Cal.4th 204, 214–215, fn. omitted.) We determine
de novo whether the agency has employed the proper
procedures, and we review the agency’s substantive factual

15
conclusions for substantial evidence. (Sierra Club v. County
of Fresno (2018) 6 Cal.5th 502, 512; Agoura Knoll, supra, 46
Cal.App.5th at pp. 675–676.)
If a lead agency approves a project for which it has
certified a negative declaration or a mitigated negative
declaration, and the agency’s decision is challenged for
CEQA compliance, the reviewing court will find an abuse of
discretion if there is substantial evidence to support a fair
argument that the project may have a substantial
environmental impact. (Agoura Knoll, supra, 46 Cal.App.5th
at pp. 675–676, citing Berkeley Hillside Preservation v. City
of Berkeley (2015) 60 Cal.4th 1086, 1112 (Berkeley Hillside).)
The reasoning behind the “fair argument” standard is
explained in Berkeley Hillside: “‘[I]f a lead agency is
presented with a fair argument that a project may have a
significant effect on the environment, the lead agency shall
prepare an EIR even though it may also be presented with
other substantial evidence that the project will not have a
significant effect.’” (Berkeley Hillside, supra, 60 Cal.4th at
pp. 1111–1112, quoting Guidelines, § 15064, subd. (f)(1); see
also Save the Plastic Bag Coalition v. City of Manhattan
Beach (2011) 52 Cal.4th 155, 171 [“If the agency’s initial
study of a project produces substantial evidence supporting a
fair argument the project may have significant adverse
effects, the agency must . . . prepare an EIR.”].) “[A]
reviewing court may not uphold an agency’s decision ‘merely
because substantial evidence was presented that the project
would not have [a significant environmental] impact. The

16
[reviewing] court’s function is to determine whether
substantial evidence support[s] the agency’s conclusion as to
whether the prescribed “fair argument” could be made. If
there [is] substantial evidence that the proposed project
might have a significant environmental impact, evidence to
the contrary is not sufficient to support a decision to
dispense with preparation of an EIR and adopt a negative
declaration, because it [can] be “fairly argued” that the
project might have a significant environmental impact.
Stated another way, if the [reviewing] court perceives
substantial evidence that the project might have such an
impact, but the agency failed to secure preparation of the
required EIR, the agency’s action is to be set aside because
the agency abused its discretion by failing to proceed “in a
manner required by law.”’ [Citation.]” (Berkeley Hillside,
supra, 60 Cal.4th at p. 1112, quoting Friends of B Street v.
City of Hayward (1980) 106 Cal.App.3d 988, 1002.) “The fair
argument standard is a ‘low threshold’ test for requiring the
preparation of an EIR. [Citations.] It is a question of law,
not fact, whether a fair argument exists, and the courts owe
no deference to the lead agency’s determination. Review is
de novo, with a preference for resolving doubts in favor of
environmental review.” (Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 928.)2

2As we explain later in this opinion, SORT is not
seeking on appeal an order requiring the Applicants to
prepare an EIR.

17
2. Potential traffic impacts and the significance of impacts
identified by the HCM methodology

SORT’s opening brief goes into great detail to explain
why a particular table in the August 4, 2015 traffic study
constitutes substantial evidence of significant delays in
vehicle travel times. SORT also argues that the trial court’s
rationale for ignoring or discounting that evidence was
invalid. Since we make our own determination on appeal
whether the administrative record contains “substantial
evidence of a fair argument” that the Project may cause a
significant impact on the environment, we focus on the
evidence before us, rather than the trial court’s reasoning.
The August 4, 2015 traffic study included an
explanation of the two distinct methodologies used to
determine whether the level of service for each of five
intersections studied would be impacted by the Project. “The
study intersections are under the jurisdiction [of] Los
Angeles County or Caltrans. Each has different criteria and
thresholds to identify the lowest desired service levels. Los
Angeles County requires the use of the Intersection Capacity
Utilization (ICU). Caltrans requires the use of the Highway
Capacity Manual (HCM).” The results of either methodology
is then translated into a Level of Service (LOS) between A
and F, with A signifying an intersection with minimal delay,
and F signifying an intersection with substantial delay. Los
Angeles County and Caltrans each have standards to

18
determine when, under their respective methodology, the
impact on an intersection is considered significant.

a) HCM numbers provide fair argument of significant impact

SORT argues that although the narrative portion of
the August 4, 2015 traffic study stated that the level of
service (LOS) results based on the HCM methodology were
not applicable as to the intersection of Crown Valley and
Antelope Woods Road, the tables provided as attachments to
the traffic study show that the project would have a
significant impact on the intersection, bringing it down to
LOS “F.” SORT argues that regardless of the narrative
portion of the report, the table constitutes substantial
evidence of a fair argument that the Project may have
significant traffic impacts. The only response Applicants
offer to SORT’s argument is that “the trial court cites the
August Study analysis and states it was not persuaded that
the traffic studies showed a fair argument of significant
impacts” at the intersection of Crown Valley and Antelope
Woods Road. We are not, however, bound to give any
deference to the trial court’s reasoning.
We conclude that the table included in the traffic
consultant’s report showing the additional vehicle delays at
the intersection of Crown Valley and Antelope Woods
constituted substantial evidence of a fair argument that the
Project would have a significant impact on traffic. The fact
that a different methodology (the ICU methodology) showed

19
no significant impact is not relevant to our analysis; we are
concerned here with whether there was substantial evidence
that the County incorrectly found no fair argument that the
Project may have a significant impact on traffic in the area.
As explained earlier, we can uphold the County’s decision
not to require an EIR (or at least an MND) only if there is no
credible evidence that the Project may have a significant
impact on the environment. (Rominger v. County of Colusa
(2014) 229 Cal.App.4th 690, 720–721; Baldwin v. City of Los
Angeles (1999) 70 Cal.App.4th 819, 842.)
We also reject the argument that, because the
intersection of Crown Valley and Antelope Woods Road was
not a freeway on or off ramp, the evidence based on the HCM
methodology was inadequate to demonstrate a significant
impact requiring either mitigation efforts or further analysis
in an EIR. As SORT points out in its cross-appeal, the
County has applied HCM methodology to non-freeway, stop-
controlled intersections, and directed the traffic consultant
to use the HCM methodology for another project in Acton
involving a Taco Bell restaurant with a drive-through.
There is nothing implicitly improper with using HCM
methodology to evaluate traffic impacts on a stop controlled
intersection, and the traffic consultant applied the
methodology in its own tables.
Our role here is not to dictate that a specific
methodology must be applied in analyzing the traffic impacts
of a proposed project, and we do not do so. Nor do we
criticize the County for its apparent view that the ICU

20
methodology is the most reliable method to analyze the
traffic impacts in this circumstance. But where an agency
generates traffic studies using two different, standard
methodologies, its later reliance on only one of the two
methodologies to determine that a project will have no
significant traffic impacts does not prevent project opponents
from citing the other methodology as substantial evidence of
a fair argument. Since our role is to determine if substantial
evidence of a fair argument exists on the record, not to weigh
the relative merits of the two methodologies, we conclude on
this record that the County erred by ignoring the substantial
evidence of traffic delays shown by the HCM methodology
included in the August 2015 traffic study. (Rominger v.
County of Colusa, supra, 229 Cal.App.4th at pp. 720–721.)

b) Thresholds of significance

SORT points out that the County has not adopted a
threshold of significance for intersections, and Applicants do
not argue otherwise. The absence of a county-adopted
threshold of significance does not preclude us from finding
that an intersection operating at an LOS “F,” which here
translates to a four minute delay, constitutes a significant
impact on the environment. The CEQA Guidelines
encourage public agencies to develop “thresholds of
significance” to assist in determining whether a project’s
effect will be deemed significant. (Guidelines, § 15064.7.) “‘A
threshold of significance is an identifiable quantitative,

21
qualitative or performance level of a particular
environmental effect, non-compliance with which means the
effect will normally be determined to be significant by the
agency and compliance with which means the effect
normally will be determined to be less than significant.’
[Citation.]” (California Building Industry Assn. v. Bay Area
Air Quality Management Dist. (2016) 2 Cal.App.5th 1067,
1073.)
Even if the County had adopted a threshold of
significance under the CEQA Guidelines, such a threshold
“may not be applied ‘in a way that forecloses the
consideration of any other substantial evidence showing
there may be a significant effect.’ [Citation.]” (Protect Niles
v. City of Fremont (2018) 25 Cal.App.5th 1129, 1153 [fair
argument based on residents’ fact-based comments, where
thresholds did not account for community’s specific
circumstances].) For the reasons already stated, we agree
that the evidence showing that the Project will cause the
intersection of Crown Valley and Antelope Woods Road to
operate at LOS “F,” means the Project’s effect on traffic is
significant, and certainly sufficient to raise a fair argument
on the question of vehicle delay.

3. Evidence that vehicles using drive-through will cause a
traffic impact

SORT also challenges the trial court’s determination
that there was inadequate evidence to support a fair

22
argument that the Project would increase traffic on Sierra
Highway during peak morning and evening hours. SORT
points to evidence that the August 2015 traffic study showed
90 cars entering the restaurant driveway per hour between
the hours of 7:00 a.m and 9:00 a.m., and the consultant
applied a 20 percent drive-through use rate, meaning that 20
percent of all cars entering the driveway would use the
drive-through. In other words, 18 cars per hour would use
the drive-through during the morning peak hours. There
was evidence that the parcel and design of the drive-through
could accommodate 11 cars in the “ordering area.” Using the
Board’s assumption that each drive-through customer would
wait 10 to 12 minutes, SORT argues there is substantial
evidence to support a fair argument that the line-up of cars
waiting to use the drive-through in the morning peak hours
would have a significant impact on traffic on Sierra
Highway, because cars would back up into the road.
Applicants offer no response to SORT’s argument
based on the consultant’s data and mathematical analysis as
it was presented to the Board. Rather than address the
question whether the administrative record contains
substantial evidence of a fair argument that the Project
would cause the alleged traffic impact, Applicants simply
state “the trial court ruled that the record August Study
showed there was sufficient capacity for the drive-through
and that [SORT’s] claim of a higher rate had not been
presented as evidence.” But our review of the administrative
record is de novo, and we do not defer to the trial court’s

23
interpretation of the evidence. Moreover, to the extent we
might adopt the trial court’s reasoning, here the trial court’s
finding of no substantial evidence was based on a
mathematical error that halved the number of cars
anticipated to use the drive-through during peak times, as
SORT amply shows. Applicants offer no argument to the
contrary.
Based on the evidence of the number of cars
anticipated to use the drive-through at peak hours, the
average waiting time, and the capacity of the drive-through
area, we find substantial evidence to support a fair
argument that the Project may have a significant impact on
traffic on Sierra Highway.

4. Traffic impact issues are not moot

Applicants contend that because they are already
preparing a new traffic study to examine traffic signals and
pedestrian hazards in response to the trial court’s findings,
any additional issues with the adequacy of the previous
traffic study are now moot. “An appeal is moot if the
appellate court cannot grant practical, effective relief.”
(Citizens for the Restoration of L Street v. City of Fresno
(2014) 229 Cal.App.4th 340, 362–363 (L Street).) SORT’s
cross appeal is not moot, because the County has not yet
filed a return on the trial court’s writ of mandate, and if we
agree with SORT’s argument, the court’s decision on
whether to discharge the writ would be bound by our

24
analysis in this appeal. (Ibid.; see Golden Gate Land
Holdings LLC v. East Bay Regional Park Dist. (2013) 215
Cal.App.4th 353, 367 [compliance with the remedy ordered
in the writ does not moot an appeal that challenges the
legality of that remedy].)

5. Remedy

Applicants argue that SORT’s cross-appeal is an
impermissible attempt to force the County to prepare an
EIR, even though (according to Applicants), an EIR is not
warranted or required. In its reply brief, SORT responds
that whenever there is substantial evidence that a project
may cause significant environmental impact, resulting in a
court determination that project approvals based on a
negative declaration are vacated, an EIR is required.
(§ 21082.2, subd. (d); Pocket Protectors, supra, 124
Cal.App.4th at p. 935.) However, during oral argument,
SORT clarified that it was not seeking an order that an EIR
was required, and that in some circumstances, an MND
could meet CEQA requirements. This is consistent with the
more nuanced approach described by our colleagues in
Friends of College of San Mateo Gardens v. San Mateo
County Community College Dist. (2017) 11 Cal.App.5th 596,
611. Even after concluding there was substantial evidence
to support a fair argument that changes in a project may
cause significant environmental impact, that court
recognized the possibility that such an impact might be

25
“reduced to insignificance” by the agency, when taking up
the project again, through the use of mitigation measures
and reflected in a mitigated negative declaration. (Ibid.; see
also John R. Lawson Rock & Oil, Inc. v. State Air Resources
Bd. (2018) 20 Cal.App.5th 77, 102 [remedy for CEQA
violations could include electing not to proceed with the
project].)
On the evidence presented in the administrative
record, we cannot conclude that an EIR will be required. It
is possible, for example, that Applicants may agree to certain
changes to the Project, such that the County could comply
with CEQA by adopting a mitigated negative declaration. At
this point, it is impossible to predict, and we will not
speculate, whether a mitigated negative declaration would
be sufficient to reduce any significant impacts on the
environment revealed by the August 2015 traffic study, or
any traffic studies conducted in the future. We therefore
decline to direct the trial court to amend its writ of mandate
to require preparation of an EIR.

B. Consistency with area plan reviewed for
substantial evidence

SORT contends the trial court applied the wrong
standard of review when it found substantial evidence
supporting the County’s determination that the Project was
consistent with community-specific land use concepts

26
described in the Antelope Valley Area Plan (the Area Plan).3
SORT argues that because the Area Plan expressly states
the residents’ desire to preserve the rural character of the
area, the court should have applied CEQA’s “substantial
evidence of a fair argument” standard. It then argues that
an EIR was necessary because the record contains
substantial evidence of a fair argument that the Project was
not consistent with the Area Plan.

1. Relevant Facts

Chapter 7 of the Area Plan recognizes that specific
communities within the Antelope Valley vary in nature,
form, and character. That chapter sets out “Community-
Specific Land Use Concepts” describing how the land use
aspects of the area plan are to be implemented in each
specific community. The section specific to Acton—which is
the relevant community for this case—begins by describing

3 SORT refers to the Area Plan as the “Town and
Country Plan.” While the “Town and Country” phrase is
used in the Area Plan, we decline to adopt that terminology.
The following excerpt sheds light on the purpose of the Area
Plan: “The purpose of the Antelope Valley Area Plan (Area
Plan) is to achieve the communities’ shared vision of the
future through the development of specific goals, policies,
land use and zoning maps, and other planning instruments.
This shared vision is articulated in the Town and Country
Vision Statement, which was developed by the Antelope
Valley communities in various workshops in 2008.”

27
the community’s geographic placement and goes on to note
that portions of the community are partially developed with
a variety of agricultural uses, single homes on large lots, a
rural town center, as well as some low-intensity commercial
areas separate from the town center. Other portions of the
community “are largely undeveloped, are generally not
served by existing infrastructure, contain environmental
resources, such as Significant Ecological Areas and Hillside
Management Areas, and are subject to safety constraints,
such as Very High Hazard Severity Zones.” The description
notes that “[c]ommunity residents are concerned about
urbanization of the areas and wish to remain an
unincorporated rural community with a unique identity.”
The Project is located in one of Acton’s low-intensity
commercial areas, where new buildings are limited to two
stories, using “Old West design elements with earth tone
colors at a pedestrian-oriented scale.” Development “that
would require the installation of urban infrastructure, such
as concrete curbs and gutters, street lights and traffic
signals, shall be discouraged as this does not fit with the
community’s unique rural character and identity.”
The Planning Commission initially determined that
allowing a drive-through restaurant was not consistent with
the Area Plan, because the location of the property adjacent
to Highway 14 would attract highway travelers and disrupt
the rural character of the community. The Board, however,
found that the drive-through restaurant was intended to
serve the local community, and would not draw substantial

28
additional traffic from the freeway. The Board therefore
found the Project to be consistent with the Area Plan. The
trial court found that the Board’s findings were supported by
substantial evidence.

2. Agency decisions about a project’s consistency with an
area plan are reviewed for substantial evidence

SORT argues the trial court should have applied the
fair argument standard applicable to CEQA matters, rather
than the more deferential substantial evidence standard of
review applicable to land use decisions such as determining
consistency with a general or area plan. We reject SORT’s
argument.
In Georgetown Preservation Society v. County of El
Dorado (2018) 30 Cal.App.5th 358, 371–372 (Georgetown),
the appellate court drew a contrast between reviewing a
negative declaration for CEQA compliance, where a court
would apply the fair argument standard, and reviewing an
agency’s planning or zoning decisions, where a more
deferential substantial evidence standard applies: “In
contrast, planning or zoning determinations are reviewed
with greater deference, both because the public entity is
deemed best able to interpret its own rules and because it is
presumed to bring local knowledge and experience to bear on
such issues. [Citations.] ‘A . . . determination that a project
is consistent with the . . . general plan “carries a strong
presumption of regularity. [Citation.] This determination

29
can be overturned only if the [entity] abused its discretion—
that is, did not proceed legally, or if the determination is not
supported by findings, or if the findings are not supported by
substantial evidence. [Citation.] . . . [A] determination of
general plan consistency will be reversed only if, based on
the evidence before the local governing body, ‘. . . a
reasonable person could not have reached the same
conclusion.’ [Citation.]” [Citation.]’ [Citations.]” (Ibid.)
SORT argues that the trial court’s reliance on Joshua
Tree Downtown Business Alliance v. County of San
Bernardino (2016) 1 Cal.App.5th 677, 695–696 (Joshua
Tree), as the basis for applying the substantial evidence
standard of review was unwarranted, and that Joshua Tree
somehow misinterpreted Pocket Protectors, supra, 124
Cal.App.4th at pp. 929–932. In Joshua Tree, project
opponents sought a writ of mandate challenging the county’s
approval of a large, new retail building for a Dollar Store.
The project opponents asserted several claims, including one
under CEQA and a separate claim that the project was
inconsistent with a community plan that favored small
independent businesses. (Id. at pp. 681–682.) Like SORT,
the project opponents in Joshua Tree argued that when a
project’s alleged inconsistencies with local plans and policies
constitute significant impacts under CEQA, the fair
argument standard of review should apply. The appellate
court rejected the argument and instead applied “the usual
standard that applies to a claim of inconsistency with a land
use plan.” (Id. at p. 695.)

30
 A leading CEQA treatise cautions against the
argument that SORT is making: “The decision in Pocket
Protectors should not be interpreted to hold that any claim of
inconsistency with an applicable land use plan or policy
requires an environmental impact report. In Pocket
Protectors, several factors in combination were important in
the court’s holding that there was a fair argument of
significant impact based on the land use consistency issues.
These factors included (1) that the governing land use
standards were adopted in part for the purpose of mitigating
environmental impacts, and (2) that the project proposed an
entirely different type of housing than was originally
envisioned in the development of the land use standards.” (1
Kostka & Zischke, Practice Under the Cal. Environmental
Quality Act (2d ed. 2015), § 6.56, p. 6-60.1.) The decision in
Pocket Protectors pointed to numerous indicia that the land
use standards served as a close surrogate for determining
environmental impact, including that the standards’
objectives included providing adequate natural light and
pure air, minimizing vehicular congestion, enhancing
aesthetic values, facilitating open green spaces, and
stressing the importance of landscaping. (Pocket Protectors,
supra, 124 Cal.App.4th at p. 930.)
In contrast to the reasoning in Pocket Protectors,
SORT’s argument is not that the asserted inconsistency with
the Area Plan serves as a closely aligned measure of
environmental impact. Rather, SORT argues that whenever
an agency includes consistency with land use plans in its

31
CEQA initial study checklist, then the question of such
consistency becomes a CEQA issue, warranting CEQA’s
stricter fair argument standard of review if the agency
adopts a negative declaration. In both Pocket Protectors and
Georgetown, the appellate court rejected the argument that
members of the public were precluded from raising a fair
argument that a project might have a significant impact on
the environment just because an agency had already
determined that the project was consistent with planning
and zoning requirements. (Georgetown, supra, 30
Cal.App.5th at pp. 370–374; Pocket Protectors, supra, 124
Cal.App.4th at pp. 929–935.) SORT’s argument is a
misguided attempt to turn these holdings on their heads, by
arguing that whenever an agency checks for consistency
with land use plans as part of its CEQA initial study
checklist, then the fair argument standard applies to the
agency’s land use decision as well. Having demonstrated
why this is not a sound reading of the current case law, we
conclude that the trial court correctly applied the substantial
evidence standard of review to the causes of action
challenging the Project’s consistency with the Community-
Specific Land Use Concepts for Acton, as described in
Chapter 7 of the Area Plan. SORT does not contend that the
record lacks substantial evidence to support the Board’s
findings, so our analysis of the land use question ends here.

32
C. The Board’s Project approvals were in compliance
with zoning requirements

SORT’s last contention on appeal is that the Project
violates County zoning requirements, because the -DP
zoning designation prevented the County from approving a
project that was substantially different from the project
previously approved in 2007. We reject this argument, in
part because the argument is inadequately presented in the
appellate briefing, and also because we find it unconvincing
in light of the broad discretion cities and counties possess
when granting conditional use permits.

1. Relevant Facts

In 2007, the County granted a conditional use permit
(2007 CUP) and re-zoned the Project site from A-1 (Light
Agricultural) to C-3-DP (Unlimited Commercial -
Development Program), based on the Gaudis’4 application to
build a retail feed store. The store was not constructed, and
the 2007 CUP expired.
While the 2014 CUP application was pending before
the Planning Commission, the Board adopted the Area Plan
in June 2015. Under the Area Plan, the land use zoning
category of the Project site changed from C-3-DP to C-RU-

4 As owners of the real property parcel, the Gaudis are
one of the Applicants and real parties in interest.

33
DP (Rural Commercial - Development Program). The Area
Plan gave the following description of the C-RU zone
designation: “Limited, low-intensity commercial uses that
are compatible with rural and agricultural activities,
including retail, restaurants, and personal and professional
offices.”
When the Planning Commission and the Board were
evaluating the 2014 CUP and the 2016 Map applications,
there was public input that the drive-through element did
not conform with plans and exhibits underlying the 2007
CUP and rezoning decisions that approved the C-3-DP
zoning. Despite the Planning Commission’s decision to
withhold approval of a drive-through for the restaurant, the
Board approved the 2014 CUP with the drive-through. In its
findings, the Board noted that the CUP was required
because the Project was in a -DP overlay zone, and LACC
22.40.040 “allows any use permitted in the basic zone (C-RU)
if a CUP has been obtained.” The Board further noted that
under LACC section 22.28.390, “a CUP is also required for
drive-through services in the C-RU Zone.” It also reviewed
the site’s zoning history, which went from agricultural in
1958 to C-3-DP in 2007 to C-R-DP in 2015 with the adoption
of the Area Plan.

2. SORT’s argument

Nowhere in its briefing does SORT identify the
standard of review that this court should apply to its

34
argument that the Board violated Los Angeles County Code
(LACC) section 22.040.030 when it approved the 2014 CUP.
SORT also fails to provide any citations to the record
demonstrating how the issue was raised with the trial court,
or any legal citations to support its argument. Even if we
overlook these deficiencies in SORT’s argument, we are not
persuaded that the Board abused its discretion or lacked
substantial evidence to support its decision to approve the
2014 CUP.
SORT starts its argument by criticizing the trial court
for rejecting its argument on immaterial grounds. According
to SORT, the trial court relied on a 2007 finding5 by the
Planning Commission that did not pertain to the question of
whether the project proposed for the 2014 CUP substantially
differed from the 2007 CUP.
SORT goes on to argue that because the -DP zone
change in 2007 was based on Planning Commission findings
that included a site plan showing a single commercial
building with detached storage and retail/office space, but no
restaurant, and LACC 22.040.030 requires development
after rezoning to conform to plans and exhibits that
constitute a critical factor to rezone, the 2014 CUP violated
LACC 22.040.030. SORT’s argument concludes as follows:

5 The finding (finding #6) stated that the C-3-DP
designation was needed “to promote use of the property that
is compatible with the surrounding existing zoning and
uses, including the adjacent commercial developments to
the north, east, and west of the subject property.”

35
 “The trial court did not address SORT’s argument that the
Project does not comply with the -DP overlay zone change or
LACC 22.040.030; nor did the trial court consider any of the
record evidence showing that the Project approved by the
Board differed substantially from the ‘plans and exhibits’
that constituted a critical factor in the 2007 decision to
rezone the property to -DP. Had the trial court evaluated
this [sic] facts it should have found that the Project did in
fact violate LACC 22.040.030.”

3. Standard of review

The issuance of a conditional use permit is a quasi-
judicial administrative act that is reviewable under the
administrative mandamus procedures pursuant to Code of
Civil Procedure section 1094.5. (Essick v. Los Angeles (1950)
34 Cal.2d 614, 623; Neighbors in Support of Appropriate
Land Use v. County of Tuolumne (2007) 157 Cal.App.4th
997, 1005 (Neighbors).) “Except in a limited class of cases
involving fundamental vested rights [citation], the trial court
reviews the whole administrative record to determine
whether the agency’s findings are supported by substantial
evidence and whether the agency committed any errors of
law.” (Neighbors, at p. 1005.) The standard of review on
appeal is the same as that applied by the trial court. (Ibid.)
That is, before upholding a CUP decision, the reviewing
court must “scrutinize the record and determine whether
substantial evidence supports the administrative agency’s

36
findings and whether these findings support the agency’s
decision.” (Topanga Assn. for a Scenic Community v. County
of Los Angeles (1974) 11 Cal.3d 506, 514.) “In determining
whether the findings are supported, ‘[w]e may not isolate
only the evidence which supports the administrative finding
and disregard other relevant evidence in the record.
[Citations.] On the other hand, neither we nor the trial
court may disregard or overturn the . . . finding “‘for the
reason that it is considered that a contrary finding would
have been equally or more reasonable.’” [Citations.]’
[Citation.] [¶] In determining whether the decision is
supported, we require the findings to ‘bridge the analytic gap
between the raw evidence and ultimate decision or order.’
[Citation.] The findings need not be stated with the
precision required in judicial proceedings. [Citation.] They
may properly incorporate matters by reference and even
omissions may sometimes be filled by such relevant
references as are available in the record. [Citation.] ‘Thus,
where reference to the administrative record informs the
parties and reviewing courts of the theory upon which an
agency has arrived at its ultimate finding and decision it has
long been recognized that the decision should be upheld if
the agency “in truth found those facts which as a matter of
law are essential to sustain its . . . [decision].” [Citations.]’
[Citation.] [¶] ‘In making these determinations, the
reviewing court must resolve reasonable doubts in favor of
the administrative findings and decision.’ [Citation.]”
(Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880,

37
884–885.) The decision whether to issue a conditional use
permit is “discretionary by definition.” (BreakZone Billiards
v. City of Torrance (2000) 81 Cal.App.4th 1205, 1224.)

4. Analysis

SORT has not shown that the Board’s decision to
approve the 2014 CUP was an abuse of discretion or was
based on legal error. The Board’s findings demonstrate that
it was aware of the 2007 zone change to allow a commercial
building with a conditional use permit. It is uncontroverted
that the 2007 CUP expired before the property’s zoning
designation changed to C-RU-DP as part of the 2015
adoption of the Area Plan. Resolving reasonable doubts in
favor of the administrative findings and decision, the Board’s
decision can reasonably be construed as deciding that the
particulars of the 2007 CUP were irrelevant to the decision
it made in 2017 on the 2014 CUP application, particularly in
light of the intervening re-zoning. On the facts before us, we
find no violation of LACC section 22.040.030.

38
 DISPOSITION

The case is remanded to the trial court with
instructions to amend the judgment entered in favor of
petitioner Save Our Rural Town (SORT) on SORT’s first
cause of action for administrative mandate to specify that a
writ of mandate shall issue directing the County of Los
Angeles to comply with CEQA for all issues where there is
substantial evidence to support a fair argument that the
Project proposed by real parties in interest Douglas and
Joanna Gaudi, Paul Zerounian, and Robert Friedman, might
have a significant environmental impact. Except as to the
question of whether there is substantial evidence of a fair
argument regarding traffic delays, as discussed in this
opinion, the judgment is affirmed. Real parties in interest
Douglas and Joanna Gaudi, Paul Zerounian, and Robert
Friedman and the County of Los Angeles are ordered to pay
costs on appeal to SORT.

MOOR, J.

We concur:

RUBIN, P. J. KIM, J.

39